21ST CENTURY: Motorist Not Entitled to Class Certification----------------------------------------------------------WorkCompCentral reports that the Arizona Court of Appeals ruledthat a motorist was not entitled to certification of a class actionagainst her automobile insurance carrier for its refusal to makemedical payments for injuries subject to coverage under a workers'compensation policy. Case: Ferrara v. 21st Century North AmericaInsurance Co., No. 2 CA-CV 2017-0195, 09/10/2018, published. Facts:Cynthia Ferrara suffered injuries in a work-related car accident.On the date of her accident, she was a covered person andbeneficiary of an automobile insurance policy issued by the 21stCentury North America Insurance Co. [GN]

650 PARLIAMENT: Fire Victims Meet with Class Action Lawyers-----------------------------------------------------------Peter Edwards, writing for Toronto Star, reports that about 250residents of 650 Parliament St., who remain out of their apartmentsafter a fire in August, met with lawyers at a downtown church onSept. 11 to hear about a proposed lawsuit seeking compensation forthem.

"We've done these cases before and we're hoping to represent all ofyou in this proposed class action," lawyer Ted Charney told thetown hall meeting at Saint Luke's United Church on Sherbourne St.

Lawyers Ted Charney and Sharon Strosberg told a town hall meetingon Sept. 11 that a class action lawsuit on behalf of residentsdisplaced by a fire at 650 Parliament St. could get themcompensation "for everything you've gone through."

About 1,500 residents were forced to flee the highrise building onAug. 21 during an electrical fire. None have been able to return,except to briefly collect belongings and pets, and Fire ChiefMatthew Pegg has estimated that it could take "several months" forrepairs to be completed.

The displaced residents were told at the Sept. 11 meeting that theymay be entitled to financial compensation for what lawyers call"loss of use and enjoyment of their homes, physical injuryincluding smoke inhalation, emotional injuries, damage to property,costs of repair and cleanup of their property, expenses formileage, food, and the costs of purchasing new clothing andessentials, costs of obtaining alternative accommodations and lostincome."

The defendants in the case would include the landlord, the buildingowner and "anyone else implicated in this electrical fire," Mr.Charney said.

"We're never going to be able to make you whole," Mr. Charney said."Everyone's been displaced … We may have some compensationavailable for you for everything you've gone through."

The fraud began in the summer of 2017, when MacEwan was in themidst of constructing the $180-million Allard Hall: astate-of-the-art building boasting music studios and dance hallswith room for 1,800 students.

Mr. Charney told them they don't have to pay any money upfront andthat the lawyers' fees -- which could come to 30 per cent of aneventual settlement -- would be taken from the final settlement andcourt-ordered costs paid by the defendants.

"There is nothing that you have to pay upfront, and if we don'twin, you don't pay anything at the end either," Mr. Charney said.

Lawyer Sharon Strosberg urged residents to save receipts forexpenses, and to record things like mileage for extra driving anddays missed from work in order to estimate their losses.

Mr. Charney and Ms. Strosberg described themselves in a writtenstatement as "experienced class action litigators with particularexpertise in residential tenancy class actions."

"We did very well in our previous class actions," Mr. Charney toldthe displaced residents, who were driven from their homes atParliament and Bloor Sts. when a six-alarm blaze sent heavy smokethroughout the building.

It took about eight hours for 100 firefighters to extinguish theblaze.

The residents have been told they won't be allowed back into theirunits until the building is cleared by the Toronto Fire Service andan Ontario Fire Marshal's investigation is finished.

They spoke of the difficulties they face living in hotels and shortterm rental units. Some have been forced to move in with relativesor friends, and others said they had moved as far away as Guelph.

Residents also spoke of expenses for damaged food, time lost fromwork, medical expenses and even pet misbehaviour. [GN]

"all persons who purchased or otherwise acquired AmericanDepository Shares or "ADS" or purchased call options or sold putoptions (collectively, "Securities") of Shire plc ("Shire") duringthe short period between September 29 and October 14, 2014,inclusive (the "Class Period"); and

ADTALEM GLOBAL: Bid to Dismiss 3rd Amended Complaint Pending------------------------------------------------------------Adtalem Global Education Inc. said in its Form 10-K report filedwith the U.S. Securities and Exchange Commission for the fiscalyear ended June 30, 2018, that the motion to dismiss the thirdamended complaint is still pending.

On May 13, 2016, a putative class action lawsuit was filed by thePension Trust Fund for Operating Engineers, individually and onbehalf of others similarly situated, against Adtalem, DanielHamburger, Richard M. Gunst, and Timothy J. Wiggins in the UnitedStates District Court for the Northern District of Illinois.

The complaint was filed on behalf of a putative class of personswho purchased Adtalem common stock between February 4, 2011 andJanuary 27, 2016. The complaint cites the ED January 2016 Noticeand a civil complaint (the "FTC lawsuit") filed by the FederalTrade Commission (FTC) on January 27, 2016 against Adtalem, DeVryUniversity, Inc., and DeVry/New York Inc. (collectively, the"Adtalem Parties"), which was resolved with the FTC in 2017, thatalleged that certain of DeVry University's advertising claims werefalse or misleading or unsubstantiated at the time they were madein violation of Section 5(a) of the Federal Trade Commission Act,as the basis for claims that defendants made false or misleadingstatements regarding DeVry University's graduate employment rateand the earnings of DeVry University graduates relative to thegraduates of other universities and colleges.

As a result of these alleged false or misleading statements, theplaintiff alleged that defendants overstated Adtalem's growth,revenue and earnings potential and made false or misleadingstatements about Adtalem's business, operations and prospects. Theplaintiff alleged direct liability against all defendants forviolations of Section 10(b) and Rule 10b-5 of the Exchange Act andasserted liability against the individual defendants pursuant toSection 20(a) of the Exchange Act.

On July 13, 2016, the Utah Retirement System ("URS") moved forappointment as lead plaintiff and approval of its selection ofcounsel, which was not opposed by the Pension Trust Fund forOperating Engineers and URS was appointed as lead plaintiff onAugust 24, 2016. URS filed a second amended complaint ("SAC") onDecember 23, 2016. The SAC sought to represent a putative class ofpersons who purchased Adtalem common stock between August 26, 2011and January 27, 2016 and named an additional individual defendant,Patrick J. Unzicker.

Like the original complaint, the SAC asserted claims against alldefendants for alleged violations of Section 10(b) and Rule 10b-5of the Exchange Act and asserted liability against the individualdefendants pursuant to Section 20(a) of the Exchange Act foralleged material misstatements or omissions regarding DeVryUniversity graduate outcomes. On January 27, 2017, defendants movedto dismiss the SAC, which motion was granted on December 6, 2017without prejudice.

The plaintiffs filed a Third Amended Complaint ("TAC") on January29, 2018. The Adtalem parties moved to dismiss the TAC on March 30,2018.

No further updates were provided in the Company's SEC report.

Adtalem Global Education Inc. provides educational servicesworldwide. It operates through three segments: Medical andHealthcare, Professional Education, and Technology and Business.Adtalem Global Education Inc. was founded in 1931 and is based inChicago, Illinois.

ADTALEM GLOBAL: Bid to Dismiss Refiled Petrizzo Complaint Underway------------------------------------------------------------------Adtalem Global Education Inc. said in its Form 10-K report filedwith the U.S. Securities and Exchange Commission for the fiscalyear ended June 30, 2018, that the defendants filed a motion todismiss the refiled Petrizzo complaint with a new lead plaintiff,Renee Heather Polly.

On October 14, 2016, a putative class action lawsuit was filed byDebbie Petrizzo and five other former DeVry University students,individually and on behalf of others similarly situated, againstthe Adtalem Parties in the United States District Court for theNorthern District of Illinois (the "Petrizzo Case").

The complaint was filed on behalf of a putative class of personsconsisting of those who enrolled in and/or attended classes atDeVry University from at least 2002 through the present and whowere unable to find employment within their chosen field of studywithin six months of graduation. Citing the Federal TradeCommission (FTC) lawsuit, the plaintiffs claimed that defendantsmade false or misleading statements regarding DeVry University'sgraduate employment rate and asserted claims for unjust enrichmentand violations of six different states' consumer fraud, unlawfultrade practices, and consumer protection laws. The plaintiffs seekmonetary, declaratory, injunctive, and other unspecified relief.

On October 28, 2016, a putative class action lawsuit was filed byJairo Jara and eleven others, individually and on behalf of otherssimilarly situated, against the Adtalem Parties in the UnitedStates District Court for the Northern District of Illinois (the"Jara Case").

The individual plaintiffs claim to have graduated from DeVryUniversity in 2001 or later and sought to proceed on behalf of aputative class of persons consisting of those who obtained a degreefrom DeVry University and who were unable to find employment withintheir chosen field of study within six months of graduation.

By order dated November 28, 2016, the district court ordered thePetrizzo and Jara Cases be consolidated under the Petrizzo captionfor all further purposes.

On December 5, 2016, plaintiffs filed an amended consolidatedcomplaint on behalf of 38 individual plaintiffs and otherssimilarly situated. The amended consolidated complaint seeks tobring claims on behalf of the named individuals and a putativenationwide class of individuals for unjust enrichment and allegedviolations of the Illinois Consumer Fraud and Deceptive PracticesAct and the Illinois Private Businesses and Vocational Schools Actof 2012.

In addition, it purports to assert causes of action on behalf ofcertain of the named individuals and 15 individual state-specificputative classes for alleged violations of 15 different states'consumer fraud, unlawful trade practices, and consumer protectionlaws. Finally, it seeks to bring individual claims under Georgiastate law on behalf of certain named plaintiffs. The plaintiffsseek monetary, declaratory, injunctive, and other unspecifiedrelief.

A motion to dismiss the amended complaint was filed by the AdtalemParties and granted by the court, without prejudice, on February12, 2018. Because the case was dismissed without prejudice, theplaintiffs can re-file the action.

On April 12, 2018, the Petrizzo plaintiffs refiled their complaintwith a new lead plaintiff, Renee Heather Polly. The plaintiffsrefiled complaint is nearly identical to the complaint previouslydismissed by the court on February 12, 2018. The Adtalem Partiesmoved to dismiss this refiled complaint on May 14, 2018.

Adtalem Global Education Inc. provides educational servicesworldwide. It operates through three segments: Medical andHealthcare, Professional Education, and Technology and Business.Adtalem Global Education Inc. was founded in 1931 and is based inChicago, Illinois.

ADTALEM GLOBAL: Bid to Dismiss Versetto Class Suit Underway-----------------------------------------------------------Adtalem Global Education Inc. said in its Form 10-K report filedwith the U.S. Securities and Exchange Commission for the fiscalyear ended June 30, 2018, that a motion to dismiss has been filedin the putative class action suit filed by Nicole Versetto.

On April 13, 2018, a putative class action lawsuit was filed byNicole Versetto, individually and on behalf of other similarlysituated, against the Adtalem Parties in the Circuit Court of CookCounty, Illinois, Chancery Division. The complaint was filed onbehalf of herself and three separate classes of similarly situatedindividuals who were citizens of the State of Illinois whopurchased or paid for a DeVry University program between January 1,2008 and April 8, 2016.

The plaintiffs claim that defendants made false or misleadingstatements regarding DeVry University's graduate employment rateand asserts causes of action under the Illinois Uniform DeceptiveTrade Practices Act, Illinois Consumer Fraud and Deceptive TradePractices Act, and Illinois Private Business and Vocational SchoolsAct, and claims of breach of contract, fraudulentmisrepresentation, concealment, negligence, breach of fiduciaryduty, conversion, unjust enrichment, and declaratory relief as toviolations of state law.

Adtalem Global Education Inc. provides educational servicesworldwide. It operates through three segments: Medical andHealthcare, Professional Education, and Technology and Business.Adtalem Global Education Inc. was founded in 1931 and is based inChicago, Illinois.

The Defendants operate air-ambulance services in several states,including Oklahoma. They do not dispatch their own services, butinstead respond to third-party dispatch requests and requests frommedical professionals or first responders.

The named Plaintiffs brought claims on behalf of themselves and aputative class of similarly situated individuals againstair-ambulance operators in Oklahoma, alleging that the Defendantscharged exorbitant rates for air-ambulance services. They claimedbreach of implied contract because the parties did not agree on aparticular price before services were provided; therefore, thePlaintiffs argued, the Defendants agreed to transport them andtheir family members for a reasonable price. They also broughtclaims, inter alia, for unjust enrichment and money had andreceived. The district court dismissed these claims as preemptedby the Airline Deregulation Act ("ADA").

At least based on the arguments that the Plaintiffs presented tothe district court and repeated to the Court, Judge Holmes findsthat the district court correctly ruled against the Plaintiffs andgranted the Defendants' motion to dismiss. He upholds the districtcourt's ruling for substantially the reasons stated in itsdismissal order.

More specifically, the Judge finds that the Defendants had a soundbasis for invoking ADA preemption against the Plaintiffs' state-lawclaims. He is persuaded by the district court's conclusion that anOklahoma state-law claim that requires a court to determine areasonable price for air-ambulance services self-evidently affectsthe price of those services. And, thus, ordinarily the ADA wouldpreempt such claims. Furthermore, the Plaintiffs have failed tomake an adequate showing that the narrow Am. Airlines, Inc. v.Wolens exception for claims relating to voluntarily undertakencontractual obligations applies to save the Plaintiffs' claims frompreemption.

Recall that this exception applies to common-law contract doctrinesbut only insofar as the doctrines serve to effectuate theintentions of parties or to protect their reasonable expectations,rather than to protect community standards of decency, fairness, orreasonableness. But, based on the Plaintiffs' arguments, the Judgecannot conclude that the Wolens exception applies. As the districtcourt suggested, the Plaintiffs rely on concepts of fairness andreasonableness. In doing so, they lament the absence of priceterms in their contracts with defendants and criticize theDefendants' ultimate after-the-fact charges for their services. Yet, as the district court aptly observed, such notions are foundonly outside the four corners of a contract.

Consequently, the Judge is hard-pressed to see how they arecalculated to effectuate the intentions of parties or to protecttheir reasonable expectations. And, more specifically, thePlaintiffs have failed to explain how imposing reasonable priceterms under Oklahoma law would help to accomplish these ends.

Finally, the Judge concludes that the Plaintiffs' "skeletal"judicial-estoppel arguments are waived. In their briefs on appeal,the Plaintiffs have not presented a single citation to a relevantstate-court case where the Defendants allegedly took acontradictory position, nor have they identified specific argumentsraised by the defendants in prior judicial proceedings thatcontradict arguments raised before the district court. ThePlaintiffs' failure to adequately support their judicial-estoppelargument effectively waives the Court's review of it.

For the foregoing reasons, Judge Holmes affirmed the judgment ofthe district court.

A full-text copy of the Court's Aug. 31, 2018 Order and Judgment isavailable at https://is.gd/BHn5lJ from Leagle.com.

The Court said, "The parties are relieved from the automaticbriefing schedule set forth in Civil Local Rules 7(b) and (c).Moreover, for administrative purposes, it is necessary that theClerk terminate the plaintiff's motion for class certification.However, this motion will be regarded as pending to serve itsprotective purpose under Damasco. On September 21, 2018, theplaintiff filed a class action complaint. At the same time, theplaintiff filed what the court commonly refers to as a "protective"motion for class certification. In this motion the plaintiff movedto certify the class described in the complaint but also moved thecourt to stay further proceedings on that motion."

In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),the court suggested that class‐action plaintiffs "move to certifythe class at the same time that they file their complaint." "Thependency of that motion protects a putative class from attempts tobuy off the named plaintiffs." However, because parties aregenerally unprepared to proceed with a motion for classcertification at the beginning of a case, the Damasco courtsuggested that the parties "ask the district court to delay itsruling to provide time for additional discovery orinvestigation."[CC]

BANDAS LAW: Seeks Judgment for Count V in Edelson's RICO Suit-------------------------------------------------------------In the case, EDELSON PC, an Illinois professional corporation,individually, and on behalf of all others similarly situated,Plaintiff, v. THE BANDAS LAW FIRM PC, a Texas professionalcorporation, CHRISTOPHER BANDAS, an individual, LAW OFFICES OFDARRELL PALMER PC d/b/a DARRELL PALMER LAW OFFICE, a suspendedCalifornia professional corporation, JOSEPH DARRELL PALMER, anindividual, NOONAN PERILLO & THUT LTD., an Illinois corporation, C.JEFFERY THUT, an individual, GARY STEWART, an individual, and JOHNDOES 1-20, Defendants, Case No. 1:16-cv-11057 (N.D. Ill.), theBandas Defendants, pursuant to Federal Rule of Civil Procedure 58,respectfully move Judge Rebecca R. Pallmeyer of the U.S. DistrictCourt for the Northern District of Illinois for an entry ofjudgment against them for the entire relief sought by thePlaintiffs in the only remaining Count of the Plaintiff's FirstAmended Class Action Complaint and Demand for Jury Trial - CountV.

On Aug. 10, 2018, the Bandas Defendants served the Plaintiffswithin an Offer of Judgment pursuant to Federal Rule of CivilProcedure 68 allowing Judgment to be entered against them in theaction finding that they engaged in the unauthorized practice oflaw in Illinois and further that the Court enters an orderenjoining Christopher Bandas in the Bandas Law Firm P.C. from thefurther practice of law in Illinois unless and until they obtainauthorization from the Supreme Court Illinois to practice law, aswell as for judgment for the cost of then accrued, by thePlaintiffs, to be determined by the Court pursuant to FRCP 54, notincluding any attorney's fees.

Pursuant to FRCP 68, the Plaintiff had 14 days to accept the BandasDefendants' Offer of Judgment, or until Aug. 27, 2018. ThePlaintiffs have not accepted the Bandas Defendants Offer ofJudgment. Pursuant to FRCP 58, the Bandas Defendants move theCourt for entry of Judgment against them for all of the reliefsought against them in the sole remaining count of the Plaintiff'sComplaint, Count V, finding that the Bandas Law Firm PC andChristopher Bandas engaged in the unauthorized practice of law inIllinois and ordering that the Bandas Defendants are enjoined fromthe further practice of law in Illinois unless and until theyobtain authorization from the Supreme Court of Illinois to practicelaw.

The Bandas Defendants further move the Court for the entry ofJudgment against them to pay the Plaintiffs the costs then accruedto be determined by the Court pursuant to FRCP 54, not includingattorney's fees. They respectfully request the Court to enter anOrder of Judgment against them for all of the relief sought inCount V of the Complaint and for the payment of Plaintiff's coststhen accrued.

A full-text copy of the Motion is available at https://is.gd/xZRqw8from Leagle.com.

BANK OF AMERICA: Settlement in Farrell Suit Has Final Approval--------------------------------------------------------------In the case, JOANNE FARRELL, et al. Plaintiffs, v. BANK OF AMERICA,N.A., Defendant, Case No. 3:16-cv-00492-L-WVG (S.D. Cal.), Judge M.James Lorenz of the U.S. District Court for the Southern Districtof California granted both the Class Counsel's unopposed motionsfor final approval of class action settlement and final approval offees, costs, and service awards.

The case is a putative class action focused on BoA's practice oflevying $35 fees against deposit account holders for failing torectify an overdrawn deposit account within five days. To open adeposit account with BoA, a customer had to first execute a DepositAgreement. Under the terms of the Deposit Agreement BoA charged a$35 fee anytime a deposit account holder wrote a check againstinsufficient funds. When a deposit account holder thus overdrafted his or her account, BoA had discretion as to whether tohonor the overdrawn check by advancing funds to the payeesufficient to cover the note. However BoA levied the InitialCharge whether it advanced the funds or not. In the event BoAadvanced the funds, deposit account holders were obligated underthe Deposit Agreement to pay back BoA's advance plus any feesincurred. Failure to do so within five days triggered a $35Extended Overdrawn Balance Charge ("EOBC").

The Plaintiff wrote some checks against insufficient funds. BoAhonored the checks but charged her $35 fee for not havingsufficient funds. When the Plaintiff failed to remedy her negativeaccount balance within five days, BoA levied EOBCs. Because theEOBCs, as a percentage of her negative account balance, exceededthe interest rate permitted by the National Banking Act, thePlaintiff filed the putative class action against BoA, allegingviolation of 12 U.S.C. Sections 85, 86 ("NBA").

A significant amount of pretrial activity followed. BoA moved todismiss the Plaintiff's Complaint, arguing that the EOBCs were not"interest" and therefore cannot trigger the NBA. The Courtdisagreed, and therefore denied BoA's motion. BoA subsequentlyanswered and then amended their answer, and the Plaintiff twicemoved to dismiss certain of BoA's affirmative defenses. In partbecause every other court to consider the issue had held that EOBCsdo not constitute interest, the Court found that there wassubstantial ground for a difference of opinion on the issue. Ittherefore granted BoA's motion for certification of aninterlocutory appeal of the denial of BoA's motion to dismiss.

BoA petitioned the Ninth Circuit for a permissive interlocutoryappeal on April 21, 2017. The Plaintiff answered. The NinthCircuit Granted BoA's Petition. While the permissive appeal waspending before the Ninth Circuit, the parties participated insettlement negotiations, exchanged informal discovery, and attendedmediation before the Hon. Layn Philips (Ret.), a highly respectedneutral. Through these efforts, the parties successfully reached asettlement agreement in early October 2017.

After conducting confirmatory discovery and reducing terms towriting, the parties formally executed the Settlement Agreement onOct. 31, 2017 and requested preliminary approval. On Dec. 21,2017, the Court granted preliminary approval. The Plaintiffs nowmove unopposed for certification of a settlement class, finalapproval of the settlement, final approval of attorneys' fees andcosts award, and final approval of service awards for the namedPlaintiffs.

In exchange for the release of the class members' claims, thesettlement agreement provides four forms of consideration:

1. BoA ceases charging EOBCs for five years beginning Dec. 31,2017. BoA's obligation will terminate during this timeframe onlyif the U.S. Supreme Court expressly holds that EOBCs or theirequivalent do not constitute interest under the NBA. BoA testifiesthat this cessation will depress their revenue (and benefit BoAdeposit account holders) by approximately $20 million per month, or$1.2 billion total over the five year period.

2. BoA provides cash payment (Cash Portion) of $37.5 millionto the class members who (1) were charged an EOBC and (2) did nothave their EOBC refunded or charged off. The Attorneys' fees($14.5 million), the costs ($53,119.92), the named Plaintiffservice awards ($20,000), and the settlement administrator hourlycharges (approximately $62,242) will come off the top 3), Theresidue (approximately $22,864,638) to issue pro rata based uponhow many EOBC's each qualifying class member paid as a percentageof all EOBC's paid by the class during the class period. The classmembers who do not opt out will receive their paymentautomatically.

3. BoA provides debt reduction (Debt Reduction) in the amountof at least $29.1 million. Debt Reduction will issue to classmembers whose BoA accounts closed with an outstanding balancestemming from one or more EOBC's levied during the class period. Each eligible class member will receive up to $35 in debtreduction. To the extent BoA reported any of this debt to thecredit bureaus, BoA will update the Bureau's as to the effect ofthe debt reduction. This debt reduction will issue automaticallyto all qualifying members who do not opt out. It will apply onlyto debt which BoA has a legal right to collect. It will not applyto unenforceable debt, such as debt discharged in bankruptcy.

If there is any residual Cash Portion settlement funds after thefirst distribution, the residue will go to the class by way of asecondary distribution, if economically feasible. Otherwise, theresidue will go to the Center for Responsible Learning as cy presbeneficiary. one of the settlement funds will revert to BoA.

Judge Lorenz overruled all objections and granted the ClassCounsel's unopposed motions for final approval of class actionsettlement and final approval of fees, costs, and service awards. He dismissed with prejudice the Amended Complaint. The 100 classmembers who opted out are not bound by the settlement agreement.

Provided it is economically feasible, should any funds remain afterthe initial distribution of the class member awards, the partieswill do a second distribution to the Settlement Class members whoreceived their class member awards, provided it was by directdeposit or by negotiated check. Should residual funds remainfollowing a second distribution, or in the event a seconddistribution is not economically feasible, the Parties willdistribute the remaining funds, if any, to cy pres recipient,Consumers for Responsible Lending (www.responsiblelending.org), anon-profit organization that fights against abusive financialpractices.

The Judge denied Objector Collins' motion for leave to file anamended Reply. To properly assess the fairness of the settlementand the requested fees, it is not necessary for the Court todetermine whether Objector Collins' attorney verbally indicated tothe Class Counsel that his client was satisfied by the $2 millionreduction in the Class Counsel's prayer for fees. The Judgeassumed Collins did not retract her objection, and overruled it.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/sGPryT from Leagle.com.

BAY STATE GAS: Crockett-Thornhill Sues over North Andover Fire--------------------------------------------------------------REBECCA CROCKETT-THORNHILL, individually and on behalf of allothers similarly situated, Plaintiff v. BAY STATE GAS COMPANY D/B/ACOLUMBIA GAS OF MASSACHUSETTS; and NISOURCE, INC., Defendants, CaseNo. 1877CV01404-A (Mass. Cmmw., Essex Cty., Sept. 28, 2018) is anaction against the Defendants to recover economic losses arisingfrom the disruption of business activity sustained by thePlaintiff.

According to the complaint, on the afternoon of September 13, 2018,a catastrophic fire raged through the property located at 30 EastWater Street in North Andover. Due to the fire, the daycareoperated by the Plaintiff has been significantly impacted by thefire and as a result the Plaintiff has suffered loss and damage tobusiness.

The Plaintiff alleges that the Defendant failed to provide naturalgas products at a safe pressure. It has been reported that on theday of the disaster, the lines were being operated at a pressure 12times higher than normal. The unsafe pressure was the direct resultof the Defendants' failure to reasonably update and monitor theirgas transmission lines. This failure resulted in a breach of theDefendants' duty of reasonable care to the Plaintiff, therebycausing the fire which ravaged her property and caused damages.

Bay State Gas Company, doing business as Columbia Gas ofMassachusetts, offers natural gas transmission and distributionservices. The company was formerly known as Springfield Gas LightCompany and changed the name to Bay State Gas Company in 1974. BayState Gas Company was founded in 1847 and is based in Westborough,Massachusetts. Bay State Gas Company operates as a subsidiary ofNiSource Inc. [BN]

Compass Bank, doing business as BBVA Compass, operates as a bank.The Bank offers offers saving and current account, investment andfinancial services, online banking, mortgage and non-mortgage loanfacilities, as well as issues credit card and business loans. BBVACompass serves client in the United States. [BN]

The Plaintiff is represented by Larry W. Lee, Esq., and William L.Marder, Esq.

BHH LLC: Court Denies Summary Judgment Bid in Hart Suit-------------------------------------------------------Judge William H. Pauley, III, of the U.S. District Court for theSouthern District of New York denied NHH's motion for summaryjudgment in the case, JOANNE HART and SANDRA BUENO, on behalf ofthemselves and all others similarly situated, Plaintiffs, v. BHH,LLC d/b/a BELL + HOWELL and VAN HAUSER LLC, Defendants, Case No.15cv4804 (S.D. N.Y.).

The lawsuit involves ultrasonic pest repellers manufactured andsold by BHH and purchased by the Plaintiffs. The Plaintiffs claimthe Repellers are completely ineffective and that BHH committedfraud. BHH counters that its Repellers are effective under certaincircumstances and that nothing in its marketing is fraudulent.

The crux of the dispute is how effective BHH represented theRepellers to be. The Plaintiffs contend that BHH made three CommonRepresentations: that the Repellers (1) are ultrasonic pestrepellers, (2) repel ants, roaches, spiders, mice, and rats, and(3) will drive pests out of one's home. BHH counters that theirdisclaimers represented that the Repellers are not completelyeffective in the presence of furniture, carpeting, and otherhousehold objects.

The Plaintiffs maintain that the Repellers do not work, and BHHdoes not disclaim all effectiveness. They also offer evidence thatBHH may have known the Repellers were ineffective before marketingthem. Moreover, they append a cavalcade of studies publishedbefore 2011, which they contend demonstrate that ultrasonicrepellers are generally ineffective.

BHH moves for summary judgment in the class-action lawsuit forfraud, breach of warranty, and violations of the California LegalRemedies Act. It sets forth various statute-of-limitationsarguments. However, Judge Pauley finds that none of thosearguments seek to bar claims completely -- they merely limit thedate from which certain Plaintiffs may recover. The Plaintiffsmake no counterargument as to whether some of their claims aretime-barred. Rather, they argue that subclasses should be createdso that the Court can address any time-barred claims separately. BHH agrees. In view of the parties' agreement regarding theapplicability of various statute-of-limitations issues, the partiesare directed to submit proposed subclasses to the Court.

Finally, the parties disagree about the date the action commencedfor statute of limitations purposes. Because a federal courtevaluating the timeliness of state law claims must look to the lawof the relevant state to determine whether, and to what extent, thestatute of limitations should be tolled by the filing of a putativeclass action in another jurisdiction, the Judge looks to the law ofNew York.

New York state courts have yet to decide the issue. But the mostrecent and persuasive case law in the District predicts that NewYork would permit cross-jurisdictional class-action tolling. Assuch, the action will be deemed commenced on April 16, 2015.

For the foregoing reasons, Judge Pauley denied BHH's motion forsummary judgment. He directed the parties to submit proposedsubclasses to address the varying statutes of limitations by Sept.26, 2018. The Clerk of Court is directed to terminate the motionspending at ECF Nos. 139 and 159. The parties are further directedto appear for a status teleconference on Sept. 27, 2018 at 11:00a.m. The counsel for the Defendants is directed to circulatedial-in information for the teleconference.

A full-text copy of the Court's Sept. 5, 2018 Opinion and Order isavailable at https://is.gd/c1sx6v from Leagle.com.

BRAAVOS INC: Hearings in Gordon Suit Continued to Nov. 1--------------------------------------------------------In the case, KAYLA GORDON and JAMES MOLLO, Plaintiffs, v. BRAAVOS,INC., d/b/a BANNERMAN SECURITY; JONATHAN CHIN; and DOES 1 through10, Inclusive, Defendants, Case No. C 17-06310 WHA (N.D. Cal.),Judge William Alsup of the U.S. District Court for the NorthernDistrict of California continued the Sept. 6, 2018 hearings on theDefendants' motion to stay the action and the Plaintiffs' motion tofile an amended complaint to Nov. 1, 2018, at 8:00 a.m.

The case is a wage-and-hour putative class action. At the initialcase management conference, the Court reminded the counsel thatthey should not discuss class-wide settlement until after the classis certified. While settlements can always be discounted for risksof litigation on the merits of a claim, the class settlementsshould not be further discounted for the risk of denial of theclass certification. Accordingly, it is important to learn whetherthe Plaintiffs will be adequately represented and if otherrequirements can be met before claims of absent class members arecompromised.

After the initial case management conference, both sides stipulatedto continue the Sept. 6, 2018 hearings to allow the Plaintiffs andtheir counsel to intervene in a concurrent action in the SuperiorCourt of California, County and City of San Francisco before JudgeMary Wiss. That action is against the same Defendants and is alsofor wage-and-hour violations.

Because of the sequence of events stated, Judge Alsup is concernedthat the parties may wish to reach a compromise that not onlydiscounts the settlement based on the merits of the claims but alsobased on the risks of class certification. Nevertheless, hegranted the continuance of the hearings to give Judge Wiss anopportunity to hear the motions before her. He ordered the partiesto provide Judge Wiss a copy of the Order. The September 6hearings on the Defendants' motion to stay the action and thePlaintiffs' motion to file an amended complaint are vacated andcontinued to Nov. 1, 2018, at 8:00 a.m.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/WXec3V from Leagle.com.

BRAND ENERGY: Court Allows Filing of First Amended McClure Suit---------------------------------------------------------------In the case, MARLIN McCLURE, an individual, for himself and thosesimilarly situated, Plaintiff, v. BRAND ENERGY SERVICES, LLC, aDelaware corporation doing business in California; BRAND ENERGYSERVICES OF CALIFORNIA, LLC, a Delaware corporation doing businessin California; and DOES 1 through 100, inclusive, Defendants, CaseNo. 2:18-cv-01726-KJM-AC (E.D. Cal.), Judge Kimberly J. Mueller ofthe U.S. District Court for the Eastern District of Californiagranted the Plaintiff leave to file his First Amended Complaint. The Plaintiff will file said FAC electronically and serve it withinfive calendar days of the Order issuing.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/sscnc0 from Leagle.com.

CAMPBELL LIBRARY: Petition for Writ of Certiorari Filed-------------------------------------------------------CHARLIE COLEMAN, JOHN P. ROTH, JR., AND ERIK HERMES, ON BEHALF OFTHEMSELVES AND ALL OTHERS SIMILARLY SITUATED, the Petitioners, v.CAMPBELL COUNTY LIBRARY BOARD OF TRUSTEES, the Respondent, CaseNo.: 18-283 (U.S., Sept. 5, 2018), is an appeal filed in theSupreme Court of United States from a lower court decision in CaseNo. 2016-CA-001642-MR (Court of Appeals of Kentucky).

A Petition for a Writ of Certiorari was filed on Aug. 31, 2018.Response due was October 5, 2018.

The initial decision of the Campbell County Circuit Court findingthe library tax illegal was rendered on April 1, 2013, is notreported and is reproduced at Pet. App. 1. The Kentucky Court ofAppeals' decision harmonizing the statutes governing the librarytax and remanding the Campbell Circuit Court's decision for furtherinstructions is reported at 475 S.W.3d 40 (Ky. App. 2015) andreproduced at Pet. App. 30a. The order denying petitioners' Motionfor Discretionary Review by the Kentucky Supreme Court is reportedat 2015 Ky. LEXIS 2047 and reproduced at Pet. App. 29a. The FinalOrder of the Campbell Circuit Court holding the Kentucky Court ofAppeals' decision shall be given a prospective-only effect anddismissing petitioners' complaint was rendered on September 16,2016, is not reported but is at Pet. App. 22a. The Order of theCircuit Court denying petitioners' motion to alter, amend, orvacate was entered on October 21, 2016, is not reported but is atPet. App. 18a.

The Opinion of the Kentucky Court of Appeals from which thisPetition arises is reported at 547 S.W.3d 526 (Ky. App. 2018) andreproduced as Pet. App. 1a. The denial of petitioners' Motion forDiscretionary Review by the Kentucky Supreme Court is reported at2018 Ky. LEXIS 235 and reproduced at Pet. App. 62a.[BN]

CANADA: Agrees to Settle Disabled Veterans' Class Action--------------------------------------------------------The Canadian Press reports that the federal government says it'sagreed to pay $100 million to settle a legal battle with disabledveterans, who had launched a class-action lawsuit after some oftheir financial benefits were clawed back.

The settlement would provide thousands of veterans with payments ofbetween $2,000 and $50,000 depending on when they served and theseverity of their disabilities.

The lawsuit was launched in 2014 after the federal governmentdeducted financial assistance from thousands of low-income veteransbecause they were also receiving disability pensions for injuriessustained while in uniform. [GN]

CANADA: Quebec Mother Files Class Action Over Field Trips---------------------------------------------------------Kathryn Greenaway, writing for Montreal Gazette, reports that thereis some confusion about what field trips, if any, schools areplanning this year. In the case of Lester B. Pearson School Boardschools, there will be field trips but details are still beinghammered out.

A series of events has helped feed the confusion.

It all began when a mother in Quebec City launched a class actionlawsuit against school boards province-wide, including all nineEnglish school boards. The lawsuit contested school fees parentswere being charged for field trips and school supplies. The lawsuitwas settled out of court in the spring and awaits legalratification. The exact amount each child will receive has not beenofficially announced, but media reports say it will be $27 to $28per child per year for the time period covered in the lawsuit.

In June, Quebec Education Minister Sebastien Proulx announced thatno fees may be charged for field trips designed to augmentcurriculum being taught in class.

LBPSB assistant director general Tom Rhymes said schools are stillstruggling with the ambiguity of that new regulation.

"Our philosophy is that every activity students participate in whenthey leave the building for a field trip, be it a visit to a museumor a play or concert, is somehow related to the curriculum," Mr.Rhymes said.

So if schools can't charge for the trip, how will it be financed?

In August, the Quebec government allocated $27 million to twoprograms -- Ecole inspirante and Sorties scolaires en milieuculturel -- to help finance field trips. And school boards heardthey would be receiving more help from the government — anadditional $9 per student to put toward the cost of field trips.

The booking of field trips is done well in advance -- normally inthe spring of the previous academic school year -- but since thefunding was announced just recently, schools are still figuring outhow the money will be spent.

An unfortunate trickle-down effect of all this is that field tripdestinations -- such as museum tours and live performances thatrely on revenue from school tours -- are struggling to stay afloatwhile the schools scramble to decide, so late in the game, whatfield trips will be booked for this academic year.

Mr. Rhymes said the money has already been distributed to LBPSBschools on a per-capita basis and that each school makes its owndecision regarding field trips.

The money may be there, but the ambiguity remains.

"We are entering territory that is different," Mr. Rhymes said. "Weneed time to collectively see what we can and cannot do. I know itis frustrating for parents, teachers and principals, but it issomething we need time to work through.

"We're not anticipating any changes when it comes to fees formaterials students use once, but when it comes to field trips,things are a little trickier for us. It's an evolving thing."

In late June, the province's nine English school boards issued astatement saying the boards are committed to working with parents,teachers and the Education Ministry to further clarify what the feestructure will look like in the future.

On the subject of field trips, the statement read, "The ministerannounced that he would undertake a consultative process titled LesGrands Chantiers en Éducation, which will begin in the fall of2018 and lead to an amendment of the Education Act by the spring of2019. Hopefully, this initiative will provide greater clarity onthe question of what should be free and what parents may choose topay for. Activities and field trips that are directly related tothe classroom programs taught and for which the students areevaluated, shall be free. Conversely, optional complementaryactivities and field trips such as a visit to the zoo, a ski day,out-of-country trips, may be charged to parents."

In the case, the Court once again consider a range of issuesrelated to an automated traffic enforcement ("ATE") system. TheCity of Cedar Rapids enacted an ordinance designed to authorize andimplement the establishment of an ATE system intended to detectdrivers traveling in excess of speed limits within Cedar Rapids. Pursuant to the ordinance, Cedar Rapids contracted with Gatso toinstall the ATE system, which included mounted cameras and radarequipment, and to provide the City with evidence of vehiclesviolating the speed limit at the ATE locations. The ATE ordinanceimposed a civil penalty for a violation.

The Plaintiffs filed a class-action petition against Cedar Rapidsand Gatso. They sought damages and declaratory and injunctiverelief, claiming the ATE system as implemented by the defendantsviolated the equal protection, due process, and privileges andimmunities clauses of the Iowa Constitution. The Plaintiffs alsoraised a number of other challenges, asserting that theadministrative remedies under the ATE ordinance were in conflictwith Iowa law, that the ATE ordinance as implemented by the City'scontract with Gatso unconstitutionally delegated governmental powerto a private entity, and that the Defendants were unjustly enrichedby the revenues generated by the ATE system.

The district court granted the Defendants summary judgment, and thePlaintiffs appealed. The Court transferred the case to the courtof appeals. The court of appeals affirmed the district court,generally applying reasoning similar to the district court. Withrespect to the Plaintiffs' claim that Iowa statutes preempted theordinance, however, the court of appeals engaged in additionalanalysis. It noted the argument was based upon implied rather thanexpress preemption. The court recognized that a municipalitycannot enact an ordinance that expressly or impliedly conflictswith state law. It, however, cited federal authority for theproposition that the ATE ordinance was not impliedly preempted. Relying on these principles, the court of appeals found no impliedpreemption.

An important threshold question for equal protection, privilegesand immunities, and substantive due process analyses is whether theATE system in the case infringes on a fundamental right tointrastate travel. Judge Appel concludes that there is no basis toexamine the constitutional validity of the ATE system using strictscrutiny arising from alleged infringement of the right tointrastate or interstate travel. Instead, he applies the RACI IIrational basis test "with bite."

And turning to the question of whether the ATE system violatessubstantive due process as the Plaintiffs' claim, he finds that itis possible to imagine a scenario in which the challenger developsa factual record that demonstrates an ATE system as implemented isso attenuated and remote from public safety concerns and is simplydesigned to raise revenues for the city that it violates rationalebasis analysis. But he concludes that the Plaintiffs have not madesuch a showing in the case.

Municipalities have home rule authority to enact legislation notinconsistent with the laws of the general assembly. This meansthat the general assembly has the power to preempt municipalitiesfrom enacting otherwise lawful legislation. In the case, thePlaintiffs challenge the ordinance because it allows the City toenforce civil penalties outside the judicial process for enforcingmunicipal infractions provided in Iowa Code section 364.22 and thejurisdictional provisions of Iowa Code section 602.6101.

The Judge concludes that the provisions of the ordinance thatpurportedly impose liability on a protesting vehicle owner who doesnot respond to a notice of violation or who does not timely file arequest with the City to institute a municipal infractionproceeding at the conclusion of the administrative process areirreconcilable with the provisions of Iowa Code section 364.22. Upholding these provisions of the ordinance would be tantamount tochoosing the City's enactment over the legislature's enactment,contrary to Seymour, 755 N.W.2d at 541. If the City wishes toenforce liability under its ordinance upon a vehicle owner who doesnot voluntarily agree to pay, it must institute a municipalinfraction action under Iowa Code section 364.22. As a result, theJudge concludes that the district court erred in granting summaryjudgment to the defendant on the question of whether Iowa Codesection 364.22 preempted the ordinance.

The Plaintiffs argue that the ATE system improperly delegatesgovernmental authority to Gatso, a private entity. Cedar Rapidsresponds by emphasizing that the activities of Gatso areministerial and not discretionary. The Judge holds that thejudgment call that was involved in the determination of who shouldbe sent notices of violation, namely, the decision to forward tothe City only images of vehicles exceeding the speed limit byeleven miles per hour, was approved by Cedar Rapids as part of itsbusiness rules governing the ATE project. There was no unlawfuldelegation when the City approved the specifically challengedpolicy as part of its business rules governing an ATE system.

Finally, the Plaintiffs bring a claim for unjust enrichment. Theyargue that as a result of the implementation of the unlawfulordinance, Cedar Rapids and Gatso were unjustly enriched. TheJudge agrees with the line of cases that provide that when astatutory violation is alleged, the doctrine of voluntary paymentdoes not apply. The Court has rejected all of the Plaintiffs'constitutional claims and the Plaintiffs' delegation challengesexcept on the calibration issue upon which the Court wasdeadlocked. No unjust enrichment arises from these rejectedclaims. However, the Court has the district court on the issue ofpreemption. Because of this changed legal landscape and becausethe Court has rejected the voluntary payment doctrine, the Judgevacated the district court's judgment on unjust enrichment andremanded the matter to the district court for further considerationin light of changed posture of the case.

For these reasons, Judge Appel vacated the decision of the court ofappeals and affirmed in part and reversed in part the judgment ofthe district court.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/NBdL33 from Leagle.com.

CLEARVIEW ELECTRIC: Court Narrows Claims in Amended Gorecki Suit----------------------------------------------------------------In the case, KAREN GORECKI, Plaintiff, v. CLEARVIEW ELECTRIC, INC.,Defendant, Case No. 2:18-cv-00035 (W.D. Pa.), Judge Mark R. Hornakof the U.S. District Court for the Western District of Pennsylvaniagranted in part and denied in part Clearview's Motion to Dismissthe Amended Complaint for failure to state a claim.

Around October 2012, a Clearview representative solicited thePlaintiff to change her utility service from Duquesne Light Co. toClearview, promising she would save money if she made the switch. The Plaintiff switched to Clearview around that date. ThePlaintiffs plan worked as follows: she was placed on anintroductory, fixed-rate plan for electricity for six months. Atthe end of the six months, the plan automatically renewed for anadditional twelve months.

Around Feb. 10, 2014, Clearview sent her a letter stating that itwas committed to providing her with continued value and notifyingher that her electricity plan would continue on a variable rateplan. The letter contained the Sales Agreement and Terms of Serviceapplying to the variable rate plan. The Plaintiff paid this ratefrom approximately May 2014 until approximately October 2017, whenshe canceled her service. Between Sept. 11, 2016, and Aug. 13,2017, Clearview's rate was .1299/kwh each and every month. Duringthose same months, the wholesale market price1 fluctuated; it wasas low as .0484/kwh and as high as .0836/kwh.

Gorecki filed a putative class action against Clearview, allegingthat Clearview breached its service contract by not varying pricebased on wholesale market conditions, and charging Gorecki and theputative class substantially higher rates as a result (Count I). In the alternative, Gorecki alleges that Clearview unjustlyenriched itself at her and the class' benefit by chargingexcessively for electricity (Count II).

The Plaintiff brings the action on behalf of herself and similarlysituated Clearview customers in the Commonwealth of Pennsylvania.

Clearview now moves to dismiss the Amended Complaint for failure tostate a claim upon which relief can be granted pursuant to FederalRule of Civil Procedure 12(b)(6).

Judge Hornak finds that Clearview has raised a number of argumentsthat, although they may ultimately prove meritorious, are notappropriate for resolution at this stage, when the Court must drawall reasonable inferences in the Plaintiffs favor. For instance,Clearview argues that wholesale market conditions are based on manyfactors besides the wholesale market price. However, the Plaintiffhas plausibly alleged that Clearview did not follow its SalesAgreement term to base its rate on wholesale market conditions byaverring facts supporting an inference that despite changes inthose conditions, Clearview's rate never changed. Drawing allreasonable inferences in the Plaintiffs favor, as the Court must,the Judge concludes that the Plaintiff has stated a faciallyplausible claim for breach of contract.

The parties concede the existence of a contract. A claim forunjust enrichment may be pleaded in the alternative to othercontract claims, but such alternative pleading is plausible onlywhen the validity of the contract is itself actually disputed,making unjust enrichment a potentially available remedy. Becausethe parties do not dispute the validity of the contract, the Judgewill grant the Defendant's Motion to Dismiss, without prejudice, asit relates to Count II of the Amended Complaint.

For the foregoing reasons, Judge Hornal concludes that Clearview'sMotion to Dismiss will be granted in part (as to Count II) anddenied in part (as to Count I). An appropriate Order will issue.

A full-text copy of the Court's Sept. 5, 2018 Opinion is availableat https://is.gd/FAqaS6 from Leagle.com.

COMCAST CORP: Antitrust Suit Settlement Has Prelim Approval-----------------------------------------------------------In the case, IN RE: COMCAST CORP. SET-TOP CABLE TELEVISION BOXANTITRUST LITIGATION, Civil Action No. 09-md-2034 (E.D. Pa.), JudgeAnita B. Brody of the U.S. District Court for the Eastern Districtof Pennsylvania granted in part and denied in part the Plaintiffs'Motion for Certification of a Settlement Class and PreliminaryApproval of a Class Action Settlement.

The Judge preliminarily approved the Settlement Agreement andpreliminarily certifies the Settlement Class. She denied theportion of the motion that seeks approval of the proposed Noticeand proposed Claim Form, the appointment of a Claims Administrator,and the establishment of a schedule for completion of theSettlement approval process.

The Judge directed the Plaintiffs that on Nov. 5, 2018, they mustsubmit an amended motion that only seeks approval of revisedproposed forms of Notice, a revised proposed Claim Form,appointment of a Claims Administrator, and a revised proposedschedule for completion of the Settlement approval process.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/F4BWu0 from Leagle.com.

JAMES DEANNE, WILLIAM GONZALES & STATE OF WEST VIRGINIA,Appellants, represented by DIANNE M. NAST -- dnast@nastlaw.com --NASTLAW LLC.

According to the complaint, on May 16, 2016, CV Sciences filed apatent application with the US Patent Trademark Office ("USPTO")for CVSI-007, titled "Pharmaceutical Formulations ContainingCannabidiol and Nicotine For Treating Smokeless Tobacco Addiction."On February 7, 2017, CV Sciences filed a continuing patentapplication under the same title, Patent #15/426,617.

On April 27, 2017, the USPTO made a non-final rejection decision onthe Company's Patent and mailed CV Sciences a letter indicating thenon-final rejection status of its Patent on June 6, 2017. OnDecember 14, 2017, the USPTO made a final rejection decision on theCompany's Patent and mailed CV Sciences a letter indicating thefinal rejection status of its Patent on December 20, 2017.

During the Class Period, CV Sciences never disclosed the materialinformation concerning the Patent to the public, either through itsseveral SEC disclosures or in any other forum. Since the rejectionof the Patent on April 27, 2017, CV Sciences has discussed CVSI-007in four Form 8-K reports, four Form 10-Q reports, and a Form 10-Kreport for fiscal 2017—none of which disclose or indicate thePatent's rejected status.

On August 20, 2018, Citron Research ("Citron") reported, viaTwitter, the Defendants' failure to disclose either the April 27,2017 non-final rejection or the December 14, 2017 final rejectionof the Patent application for CVSI-007. Following publication ofthe Citron report, CV Sciences' stock price fell $2.40 per share,or 36.31%, to close at $4.21 per share on August 20, 2018.

CV Sciences, Inc. operates as a life science company. The companyfocuses on developing and commercializing prescription drugsutilizing synthetic cannabidiol (CBD) as the active pharmaceuticalingredient. CV Sciences, Inc. was founded in 2010 and is based inLas Vegas, Nevada. [BN]

DASHUB LLC: Schlanger Law Group Files National Class Action-----------------------------------------------------------On Sept. 12, Schlanger Law Group LLP filed nationwide and New Yorkstate class action claims against Dashub, LLC, a licensedautomobile dealer doing business nationwide. The case, filed in theU.S. District Court for the Eastern District of New York, is YacineOunis v. Dashub, LLC.

Dashub provides consumers with a means of purchasing vehicleslisted at dealer auctions, which often accept bids only fromlicensed dealers. Dashub represents to consumers that the companywill bid and purchase the vehicle on the consumer's behalf, and theconsumer will then pay Dashub the final auction price plusspecified fees and costs. However, plaintiff alleges that Dashubroutinely misrepresents the price it pays for vehicles at auction,collecting the artificially inflated amount from the consumer andpocketing the difference.

For example, Mr. Ounis says the vehicle he purchased through Dashubsold at auction for $10,100. However, Dashub advised Mr. Ounis thatthe car had cost $10,600. This inflated price was reflected in Mr.Ounis's final billing, resulting in him being overcharged by $500.

The complaint also alleges that Dashub violated New York Vehicle &Traffic Law §417, which requires that a dealer selling a usedvehicle in New York inspect the vehicle and certify it roadworthy.Rather than conducting inspections and providing the requiredcertification, Dashub explicitly states that vehicles are sold "asis, with no warranty."

The lawsuit seeks monetary compensation for the fraudulent charges,third party inspection of vehicles sold to New York consumers, andother appropriate remedies. Mr. Ounis also seeks punitive damagesfor Dashub's alleged practice of buying used vehicles at one priceand then unlawfully charging consumers more and pocketing thedifference.

If you have purchased a vehicle through Dashub and believe you mayhave been overcharged, or are a New York consumer who purchased aused vehicle through Dashub and did not receive a certificate ofroadworthiness, contact us at 212-500-6114, or fill out the contactform on our website.

About Schlanger Law Group LLP

Schlanger Law Group LLP -- http://www.consumerprotection.net-- is a consumer protection law firm with offices in New York City,Upstate New York, and Mississippi. SLG is dedicated to protectingconsumer rights through class action litigation and sophisticated,zealous advocacy under the Fair Debt Collection Practices Act(FDCPA), Fair Credit Reporting Act (FCRA), Truth in Lending Act(TILA), and other state and federal consumer financial protectionstatutes. [GN]

In the putative class action, nominal Plaintiffs Timothy and HatemaDavis allege that Defendant City of Detroi and various individualpolice officer Defendants violated their constitutional rights whenofficers of the City's Narcotics Unit searched Plaintiff TimothyDavis' duly licensed marijuana grow facility, seized property thathe legitimately owned in connection with his operation of thatfacility, and arrested him, all without probable cause.

The Plaintiffs seek certification of the proposed class of (a)individuals who were the owners and/or occupants of homes and/orbusinesses engaged in the licensed distribution of marijuana formedical purposes; (b) who were subjected to search and/or seizureby agents and/or members of the Detroit Police Department'sNarcotics' Unit; (c) from the period of Feb. 11, 2012 until thedate of judgment or settlement of the case; (d) who were neverconvicted of any offense arising from the search and/or seizure;(e) whose search and seizure were executed without probable cause;and (f) where such searches and/or seizures were conducted pursuantto Defendant City of Detroit's policies, practices, and/orcustoms.

In a Report and Recommendation issued on May 11, 2018, MagistrateJudge David R. Grand recommended that the Court denies thePlaintiffs' Motion for Class Certification. The Plaintiffs havefiled Objections to the Report and Recommendation, and theDefendants have filed a Response to the Plaintiffs' Objections.

The Plaintiffs have raised separate objections to the MagistrateJudge's determinations that the proposed class does not meet Rule23(a)'s ascertainability requirement, does not meet Rule 23(a)(1)'snumerosity requirement, and does not qualify for certificationunder Rule 23(b)(2).

Judge Borman finds that these objections lack merit. First, hesays the Plaintiffs have cited no binding authority suggesting thatthe Magistrate Judge committed legal error in determining thatPlaintiffs have not satisfied the ascertainability requirement. Second, the Magistrate Judge regarded the Plaintiffs' prediction ofthe size of the putative class to be overly speculative, and heagrees. Third, the Plaintiffs' projection of a class of hundredsof members is too sparsely supported -- particularly given theamount of time that the case has been pending -- to be anything butspeculative. Fourth, the Plaintiffs' argument that the proposedclass satisfies various requirements of Rule 23(b)(1) and Rule23(b)(3) class actions is premised on the notion that theMagistrate Judge's ascertainability finding was erroneous. TheJudge finds that it was not.

For these reasons, Judge Borman overruled the Plaintiffs'Objections, adopted the Magistrate Judge's May 11, 2018 Report andRecommendation, and denied the Plaintiffs' Motion for ClassCertification.

A full-text copy of the Court's Aug. 31, 2018 Opinion is availableat https://is.gd/q3AzXN from Leagle.com.

DR PEPPER: Kilpatrick Townsend Attorney Discusses Court Ruling--------------------------------------------------------------Joe Reynolds, Esq. -- jreynolds@kilpatricktownsend.com -- ofKilpatrick Townsend & Stockton LLP, in an article for Lexology,wrote that there's been a string of cases by the Southern Districtof New York and Northern District of California dismissingdeceptive labeling class actions based on the marketing of "diet"soda. See July 9, 2018 post, "S.D.N.Y. joins N.D. Cal. in rejectingclaim that "diet" soda is deceptive to a reasonable consumer." Oneof those cases provided the class plaintiff one more opportunity totry and state a claim under California's consumer protection laws.In dismissing that plaintiff's renewed attempt, the NorthernDistrict of California made two key observations that will likelydoom any future class action alleging that the marketing of "diet"soda is deceptive: (1) reasonable consumers understand that dietsoda -- at best -- will help them lose or maintain weight relativeto the consumption of regular (high calorie) soda, and (2) noscientific study to date has established that the sweetener used indiet soda actually causes weight gain, rending implausible anyallegation to the contrary.

California's "reasonable consumer" test controlled the plaintiff'sconsumer protection claims, which require that a plaintiffplausibly allege that members of the public are "likely" to bedeceived. Becerra, 2018 WL 3995832, at *4. The Becerra court hadpreviously dismissed the plaintiff's claim because the plaintiffhad not alleged any "facts or theories" to plausibly support thenotion that "the label conveys more than that the drink hasrelatively less calories and sugar than normal soft drinks." Id. at*3 (emphasis in original). And, just as in the Southern District ofNew York's decision in Manuel, the Becerra court analyzed thescientific studies featured in the plaintiff's operative complaint(which the plaintiff relied on to substantiate the allegation thatDiet Dr Pepper actually causes weight gain), ruling the studiesonly showed correlation and not causation.

In her amended complaint, the plaintiff also added a number ofallegations, regarding (i) dictionary definitions of the term"diet," (ii) examples of Dr Pepper's advertisements, (iii)statements about diet soda and weight loss from the AmericanBeverage Association, (iv) the results from a consumer surveyasking consumers about their understanding of the impact diet sodahas on their weight, and (v) additional scientific studies aboutwhether the sweetener in Diet Dr Pepper actually causes weightgain. None of these new allegations saved the plaintiff's putativeclass action.

First, the Becerra court evaluated the plaintiff's eight newdictionary definitions of "diet," all of which associated the termwith "losing weight, limiting food intake, or preventing disease."Id. at *4. But the Court refused to consider the term "diet"outside of the "context" in which it appeared – on the soft drinklabel. Highlighting the thorough reasoning of Judge Engelmayer inManuel, the Becerra court held it is not plausible for reasonableconsumers to look at "diet" in Diet Dr Pepper as "associated withweight loss, separate and apart from the specific context of theproduct." Id.

Second, the Becerra court evaluated advertisements from as early asthe 1970s that allegedly conveyed the "impression" that consumptionof Diet Dr Pepper is beneficial in terms of weight loss and healthyweight management. For example, one advertisement showed a"bikini-clad woman" with the text, "[j]ust keep sipping, watch whatyou eat, and pretty soon you'll start looking better and bettertoo." Id. at *5. But again, the Court found that theseadvertisements suffered from the same problems as the dictionarydefinitions: all they convey are benefits as compared to regularsoft drinks.

Third, the Becerra court rejected the plaintiff's reliance on twoarticles from the American Beverage Association, which discussedhow drinking diet beverages can help consumers lose weight. Neitherof these articles did anything more than support the Becerracourt's view that a reasonable consumer "would simply not look atthe brand name Diet [Dr Pepper] and assume that consuming it,absent any lifestyle change, would lead to weight loss." Id. at *6(quoting Becerra v. Coca-Cola Co., C 17-05916 WHA, 2018 WL 1070823(N.D. Cal. Feb. 27, 2018) (analyzing identical claims against DietCoke)).

Fourth, the plaintiff presented results from a survey of 400California consumers purporting to show that 63.3 percent of themexpected that soft drinks labeled "diet" would "help them maintainweight, or at least not affect their weight." Id. Dr Peppercontested the significance of the survey results, because theplaintiff had not also include allegations about the survey'smethodology, what questions were asked, or who administered it. TheBecerra court agreed and ruled that the amended complaint lackedother plausible allegations that could permit a reasonableinference that Diet Dr Pepper is misleading. It also concluded thatthe unsupported survey simply signified a "possible" consumer view,as opposed to a plausible one. Even so, the Becerra court foundthat the survey failed to challenge the view that "diet" onlysignals relatively fewer calories, as compared to regular soda.

Finally, the plaintiff included additional allegations aboutscientific studies concerning the impact of Diet Dr Pepper'ssweetener on weight, further alleging that causation is not thepleading requirement because "unequivocal proof of causation" doesnot always exist. The Becerra court agreed but ruled that theplaintiff must nonetheless plausibly allege causation. Havingfailed to offer a "single finding of causation" between thesweetener or diet soda products and weight gain, the plaintifffailed to supply "the plausibility of a causal link between Diet DrPepper and weight gain." Id. at *8. For this reason, the plaintifffailed to "cross the threshold from allegations of correlation tocausation." Id. at *9. The Becerra court also noted that "continuedscientific research" may allow the plaintiff to reach her desiredconclusions but that her claims failed "today." Id.

In sum, the plaintiff's new allegations could not overcome the twokey conclusions shared by the federal district courts: First, themessage and meaning of "diet" in diet soda must be viewed incontext when assessing whether that term is deceptive. And whenproperly viewed in context, reasonable consumers understand thebenefits of diet soda only in relation to regular soda – notindependently as a weight loss tool. Second, to plausibly allegethat diet soda causes weight gain, a plaintiff must point toscientific studies that establish such a causal link. Mereallegations of correlation will not survive scrutiny. These twoconclusions likely spell trouble for any future "diet" soda classactions. [GN]

DRINK DAILY: Court Dismisses "Daily Greens" Mislabeling Suit------------------------------------------------------------In the case, GERARD CAMPBELL, Plaintiff, v. DRINK DAILY GREENS,LLC, Defendant, Case No. 16-CV-7176 (E.D. N.Y.), Judge I. LeoGlasser of the U.S. District Court for the Eastern District of NewYork granted the Defendant's motion to dismiss the Second AmendedComplaint, under Rule 12(b)(6) of the Federal Rules of CivilProcedure, for failure to state a claim.

The Plaintiff brings the putative consumer class action against theDefendant. The case is in federal court on the basis of diversityjurisdiction. Campbell asserts three causes of action: (i)deceptive business practices under New York General Business Law("GBL") Section 349; (ii) false advertising under GBL Section 350;and (iii) common-law fraud. The crux of all three claims is theallegation that Defendant sells juice products with misleadinglabels.

Pending now before the Court is Defendant's motion to dismiss theSecond Amended Complaint, under Rule 12(b)(6) of the Federal Rulesof Civil Procedure, for failure to state a claim.

The Defendant is a Texas-based company that manufactures and sellsjuice products bearing the name 'Daily Greens.' Two of its productlines are at issue in the case: Green Juices and Just Juices. TheDefendant manufactures the Products through a two-step process.

Step one is cold-pressing, itself a two-step process by whichfruits and vegetables are first (i) shredded into a pulp and then(ii) the pulp is subjected to hydraulic pressure, which pressureextracts juice and water from the produce while leaving behind thepulp and fiber. After bottling comes step two: high pressureprocessing ("HPP"). During HPP, an FDA-approved method foreliminating harmful pathogens and bacteria, the bottles are placedinto a cylindrical vessel and pressurized at levels up to 87,000pounds per square inch.

Plaintiff Campbell, a Brooklyn resident, claims that he purchasedone of the Products in August 2016. More to the point, he claimsthat he paid a premium for the Products based on several purportedmisrepresentations on the Products' labels and on the Defendant'swebsite. Specifically, Campbell claims that the Defendant, on itsProducts' labels and on its website, made a number of materiallyfalse or misleading representations—namely, that the Products (i)are cold-pressed; (ii) are not pasteurized; (iii) are fresh or havethe quality of freshness; (iv) are never heated; and (v) have 4.5pounds of produce pressed into every bottle. According toCampbell, these claims about the Products are all materially falseor misleading in light of the fact that the Products undergo HPP.

In addition, Campbell claims to have relied on the Defendant'swebsite, drinkdailygreens.com, for its representation that theProducts are not subjected to a process of pasteurization. Whathis Second Amended Complaint nowhere acknowledges, however, is thatthe Products' label also discloses, in boldfaced text, that theProducts are High Pressure Processed. The images Campbell includedin the Second Amended Complaint are carefully cropped, failing toinclude the portion of the Products' label pasted.

The Defendant submitted the image of the Products' label as anattachment to a declaration in support of its motion to dismiss,and Campbell has not disputed its accuracy or authenticity. Accordingly, the Court takes judicial notice of this portion of thelabel under Rule 201(b)(2) of the Federal Rules of Evidence. Thisportion of the label is appropriate for consideration on a motionto dismiss because Campbell clearly relied on it in bringing hissuit. The Second Amended Complaint repeatedly highlights twostatements that appear only on this portion of the label: (i)pressing raw vegetables preserves nutrients and (ii) never heatedto preserve freshness and nutritional value.

Judge Glasser finds that since Campbell has not plausibly allegedany materially misleading statements or omissions by the Defendant,he has failed to state a claim under either Section 349 or Section350 of the GBL.

In addition, Campbell's fraud claim flounders on the first element:he has failed to allege a material misrepresentation or omission offact. Moreover, Campbell has not alleged facts sufficient tosatisfy the scienter element (i.e., intent to defraud). In anyevent, the Judge finds that Campbell appears to have abandoned hisfraud claim. The Defendant made these and other points in itsopening brief, and Campbell did not respond or otherwise defend (oreven mention) his fraud claim in his opposition brief.

For the foregoing reasons, Judge Glasser granted the Defendant'smotion to dismiss the Second Amended Complaint. The action isdismissed with prejudice.

A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinionand Order is available at https://is.gd/KXV6hY from Leagle.com.

Gerard Campbell, individually on behalf of himself and all otherssimilarly situated, Plaintiff, represented by Joshua Levin-Epstein,Levin-Epstein & Associates.

The Court said, "The parties are relieved from the automaticbriefing schedule set forth in Civil Local Rule 7(b) and (c).Moreover, for administrative purposes, it is necessary that theClerk terminate the plaintiff's motion for class certification.However, this motion will be regarded as pending to serve itsprotective purpose under Damasco. On September 21, 2018, theplaintiff filed a class action complaint. At the same time, theplaintiff filed what the court commonly refers to as a "protective"motion for class certification. In this motion the plaintiff movedto certify the class described in the complaint but also moved thecourt to stay further proceedings on that motion."

In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),the court suggested that class‐action plaintiffs "move to certifythe class at the same time that they file their complaint." "Thependency of that motion protects a putative class from attempts tobuy off the named plaintiffs." However, because parties aregenerally unprepared to proceed with a motion for classcertification at the beginning of a case, the Damasco courtsuggested that the parties "ask the district court to delay itsruling to provide time for additional discovery orinvestigation."[CC]

Equiinet is a corporation organized and existing under the laws ofthe State of Nevada. The company is a manufacturer of voice andsecurity appliances and provides telecommunications, cloudservices, and VoIP services. [BN]

FANHUA INC: Faces Long Suit over 11% Drop in Share Price--------------------------------------------------------MIAO LONG, individually and on behalf of all others similarlysituated, Plaintiff v. FANHUA, INC.; CHUNLIN WANG, and PENG GE,Defendants, Case No. 1:18-cv-08183 (S.D.N.Y., Sept. 7, 2018) is aclass action on behalf of a class consisting of all persons whopurchased or otherwise acquired Fanhua securities between April 20,2018 through August 27, 2018, seeking to recover damages caused byDefendants' violations of the federal securities laws and to pursueremedies under the Securities Exchange Act of 1934.

According to the complaint, on October 31, 2007, the Company listedits American depositary shares ("ADS"), each of which represents 20ordinary shares, on the Nasdaq Global Market ("NASDAQ"). Fanhua'sADSs trade under the symbol "FANH."

The Defendants made materially false and misleading statementsregarding the Company's business, operational and compliancepolicies. Specifically, Defendants made false and misleadingstatements and failed to disclose that: (i) Fanhua engaged inimproper business practices, including irregular accounting; (ii)the foregoing practices were intended to benefit Company insidersand overstated Fanhua's financial assets and performance metrics;and (iii) as a result, Fanhua's public statements were materiallyfalse and misleading at all relevant times.

On August 27, 2018, stock analyst Seligman Investments published anarticle that described Fanhua as a "questionable company" anddetailed a history of alleged fraud within the Company, includingaccounting irregularities in the Company's second quarter 2018financial results. On this news, Fanhua's ADS price fell $2.75 pershare, or 10.52%, to close at $23.40 on August 27, 2018.

As a result of the Defendants' wrongful acts and omissions, and theprecipitous decline in the market value of the Company'ssecurities, the Plaintiff and other Class members have sufferedsignificant losses and damages.

Fanhua Inc. distributes insurance products in China. It operatesthrough two segments, Insurance Agency and Claims Adjusting. Thecompany was formerly known as CNinsure Inc. and changed its name toFanhua Inc. in December 2016. Fanhua Inc. was founded in 1998 andis headquartered in Guangzhou, China. [BN]

FLORIDA: Mattis Files Petition for Writ of Certiorari-----------------------------------------------------Theadene Mattis filed a petition for writ of certiorari on Sept.12, 2018. The proceeding is captioned as THEADENE MATTIS, onbehalf of himself and all others similarly situated, thePetitioner, vs. STATE OF FLORIDA, the Respondent, Case No. 18-5962(U.S.).

Mr. Mattis said, "The denials by the 4th District Court of Appealin Florida in this case raise issues of great practical importanceand constitutional significance meriting this Court's intervention.This Court should agree that when police know that a "confidentialinformant" being used to secure a search warrant is a suspect'sspouse, the failure to note the spousal relationship on theapplication for the search warrant and the failure to prove thatthe spouse waived her marital privilege when providing suchinformation to police represents a constitutional violation."[BN]

The Petitioner appears pro se.

FREIGHT HANDLERS: Underpays Unloaders, James Kraft Alleges----------------------------------------------------------JAMES KRAFT, individually and on behalf of all others similarlysituated, Plaintiff v. FREIGHT HANDLERS, INC.; and FHI, LLC,Defendants, Case No. 6:18-cv-01469-CEM-GJK (M.D. Fla., Sept. 7,2018) is an action against the Defendant's failure to pay thePlaintiff and the class overtime compensation for hours worked inexcess of 40 hours per week.

Mr. Kraft was employed by the Defendants as unloader.

Freight Handlers, Inc. provides product handling and logisticsservices to retailers, distributors, manufacturers, and carriers inthe grocery industry in the United States. Freight Handlers, Inc.was founded in 1991 and is based in Charlotte, North Carolina.[BN]

FRIENDFINDER NETWORKS: Removes Gutierrez Case to N.D. California----------------------------------------------------------------The Defendant removed the case captioned Alejandro Gutierrez,individually and on behalf of all other similar situatedindividuals, Plaintiff, v. FriendFinder Networks, Inc., a DelawareCorporation, the Defendant, Case No. 18CV332813 (filed on August10, 2018) from the Superior Court of California, Santa ClaraCounty, to the United States District Court for the NorthernDistrict of California. The Northern District of California CourtClerk assigned Case No. 5:18-cv-05918-SVK to the proceeding.[BN]

FRITO-LAY: Oct. 17 Due to File Sanchez Deal Prelim Approval Bid---------------------------------------------------------------In the case, ELIAZAR SANCHEZ, on behalf of himself and all otherssimilarly situated, Plaintiff, v. FRITO-LAY, INC., Defendant, CaseNo. 1:14-cv-00797-DAD-BAM (E.D. Cal.), Judge Dale A. Drozd of theU.S. District Court for the Eastern District of California hasissued an order granting the joint stipulation to extend deadlineand continue hearing on the Plaintiff's motion for preliminaryapproval of the class action settlement.

On Aug. 31, 2018, the parties filed a stipulation to extend timefor the Plaintiff's filing of a motion for preliminary approval ofthe class action settlement and to continue the scheduled hearingon that motion. Good cause appearing and the parties having sostipulated, the Judge ordered that the Plaintiff will have untilOct. 17, 2018 to file the motion for preliminary approval, and thatthe hearing on preliminary approval is continued to Nov. 20, 2018.

A full-text copy of the Court's Sept. 4, 2018 Order is available athttps://is.gd/r08Wmw from Leagle.com.

Plaintiffs Ilya and Rimma Tarkov purchased round-trip airlinetickets from Frontier for a vacation to Punta Cana, DominicanRepublic. The Tarkovs sued the airline under Article 19 of theMontreal Convention, alleging that their flights to and from PuntaCana were delayed and seeking compensatory damages for the expensesthey incurred as a result of the delays.

Frontier is a Colorado corporation and the Tarkovs are residents ofDeerfield, Illinois. The Tarkovs were scheduled passengers on aMarch 21, 2015 Frontier flight from Chicago, Illinois to PuntaCana, Dominican Republic ("Flight 40"). Flight 40 was scheduled todepart from Chicago's O'Hare Airport at 10:00 a.m. local time andto arrive at the Punta Cana Airport at 3:30 p.m. local time. OnMarch 21, 2015, Flight 40 left O'Hare Airport at 10:01 a.m. andlanded in Punta Cana at 3:12 p.m.

The Tarkovs were also scheduled passengers on a March 28, 2015Frontier flight from Punta Cana to Chicago ("Flight 41"). Flight41 was scheduled to depart from Punta Cana at 4:25 p.m. local timeand arrive in Chicago at 8:36 p.m. local time. According toFrontier, Flight 41 was cancelled on March 28, 2015 due to anoutage in the radar system at the Punta Cana Airport, which was notwithin Frontier's control. Radar is essential for the safe controlof air traffic. F rontier states that the cancellation of Flight 41was categorized as an "uncontrollable" event. It asserts that itwas impossible to operate Flight 41 without a working radar systemand that it was required by law to cancel Flight 41 because of theradar outage. Ilya Tarkov, however, asserts that he personallyobserved another airplane departing the Punta Cana Airport on March28, 2015.

After Flight 41 was cancelled, Frontier re-booked the Tarkovs onthe next available flight to Chicago, which was Flight 2041,scheduled to leave Punta Cana the next day, on March 29, 2015. Flight 2041 left the Punta Cana Airport on March 29, 2015, as soonas the radar system was operational. Frontier took all reasonablemeasures to ensure that Flight 2041 departed as soon as it hadpermission from air traffic control to do so.

The Tarkovs assert that they incurred financial losses as a resultof the delays, including the cost of a hotel, taxi fares, food,medication, phone charges, unused pre-paid theater tickets, andlost wages. Their complaint asserts two claims against Frontierunder Article 19 of the Montreal Convention -- one for the delay ofFlight 40 on March 21, 2015 (Count II) and one for the delay ofFlight 41 on March 28, 2015 (Count 1).

Frontier moves for summary judgment on both claims asserted by theTarkovs. The air carrier argues that undisputed evidence showsthat Flight 40 (the flight to Punta Cana) was not delayed. As toFlight 41, the return flight, Frontier admits that the flight wasdelayed but argues that it has presented sufficient undisputedevidence to establish the affirmative defense provided for inArticle 19.

Judge Tharp concludes that no juror could reasonably find in favorof the Plaintiffs based on the single piece of evidence theypresented to show that the delay of Flight 41 was not impossible toavoid. In doing so, he does not improperly weigh conflictingevidence or make credibility determinations; such judgments are notpermitted at the summary judgment stage. Instead, he finds thatIlya Tarkov's observation is not sufficiently probative to create aconflict with Frontier's evidence. Accordingly, the Plaintiffscannot survive summary judgment on their Article 19 claim for theFlight 41 delay.

Because Frontier has met its burden to establish that it isentitled to summary judgment on both claims asserted by theTarkovs, the Judge will not address the air carrier's additionalarguments regarding damages and discovery violations. He, however,does address the Tarkovs' failure to comply with Judge Kim's Aug.1, 2017 Order requiring them to pay Frontier $1,040 for theattorney's fees related to a motion to compel discovery thatFrontier was forced to file. Frontier has established that theTarkovs have not made the Court-ordered payment and the Tarkovs donot dispute that fact in their brief or SOF. They are ordered tocomply with Judge Kim's Aug. 1, 2017 Order and to file on theCourt's docket proof of payment of the $1,040 by Sept. 10, 2018.

For these reasons, Judge Tharp granted Frontier's motion forsummary judgment. Judgment will be entered in favor of Frontier. The Plaintiffs are ordered to file on the docket by Sept. 10, 2018,proof of payment of $1,040 to Frontier. The claims of any putativeclass members are dismissed without prejudice.

A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinionand Order is available at https://is.gd/8kekjq from Leagle.com.

G.I. Trucking Company operates a trucking company that provides arange of transportation services. It also offers transportationservices through terminals in the United States and Canada. Thecompany was formerly known as G.I. Trucking Company and changed itsname in August 2001. Estes West Express was founded in 1946 and isbased in La Mirada, California. As of August 1, 2001, Estes WestExpress operates as a subsidiary of Estes Express Lines, Inc. [BN]

Gaco filed the motion on April 16, 2018. On April 30, 2018, thePlaintiff opposed the motion. The Defendant moves to dismiss thePlaintiff's putative class action complaint under the doctrine ofclaim splitting. According to the Defendant, this doctrineprecludes the Plaintiff from raising individual personal injuryclaims in state court, and at the same time, pursuing his productliability claims on a class-wide basis in the Court. It arguesthat the Plaintiff's claims in these lawsuits stem from the sametransactional nucleus of facts, and must be brought in the sameproceeding.

There is no dispute that: (1) the Plaintiff filed his state courtlawsuit on the same day that he filed the action in federal court;and (2) the Plaintiff has not yet received a judgment in his statecourt lawsuit.

Judge Gilliam declines to dismiss the Plaintiff's putative classaction claims at this stage. He finds that the claim splittingdoctrine is based on res judicata principles, and asks broadlywhether a "prior judgment" precludes a subsequent action that, ineffect, seeks to relitigate the same cause of action. Asmentioned, the Plaintiff's state court lawsuit is proceeding inparallel with the action, and the state court has not yet issued ajudgment on the Plaintiff's personal injury claims. The Judge alsofinds that the Defendant fails to present any analogous authoritysuggesting that claim splitting applies where two actions areproceeding in parallel.

Considering the action's early stage, the Judge declines to decidenow whether the Plaintiff's failure to expressly plead his personalinjury claims substantively interferes with his adequacy as classrepresentative in the action. That issue is better addressed on amotion for class certification.

For the foregoing reasons, Judge Gilliam denied the Defendant'smotion to dismiss the complaint. He set a case managementconference for Sept. 18, 2018 at 2:00 p.m. The parties must submita joint case management statement by Sept. 11, 2018. The Judgevacated the case management conference currently set for Sept. 13,2018 at 2:00 p.m.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/cwMcYS from Leagle.com.

Scott Feamster, on behalf of himself and all others similarlysituated, Plaintiff, represented by Sheri L. Kelly --slk@sherikellylaw.com -- Law Office of Sheri L. Kelly.

The Plaintiffs filed in state court the putative class actionagainst the Defendants, alleging state law claims for breach ofexpress contract, conversion, and breach of fiduciary duty. Thecase was then removed to federal district court. The districtcourt dismissed without prejudice for lack of standing thePlaintiffs' claim for breach of express contract. The districtcourt dismissed for failure to state a claim the Plaintiffs'conversion claim. The district court then entered judgment infavor of GRMC on the Plaintiffs' claim for breach of fiduciaryduty.

In the diversity action involving Alabama law, the Named Plaintiffsappeal the district court's final judgment in favor of theDefendants. On appeal, they challenge the district court'sdismissal of their conversion claim based only on the theory thatGRMC's hospital liens interfered unlawfully with their rights totheir med-pay insurance benefits. The Plaintiffs next challengethe district court's entry of judgment in favor of GRMC on theirclaim for breach of fiduciary duty.

The Appellate Court finds that the Plaintiffs made no allegationsthat GRMC received payment on Grindstaff's behalf or that GRMCplaced Grindstaff's med-pay proceeds in a separate account. Itcannot infer reasonably that the unpaid med-pay benefits constitutespecific property that would support a claim for conversion underAlabama law. Thus -- under the federal pleading standard -- thePlaintiffs have alleged no plausible claim for relief. The Courtaffirmed the district court's dismissal of the Plaintiffs'conversion claim for failure to state a claim.

The Court also finds that the district court provided no notice tothe Plaintiffs that the Court -- notwithstanding the Defendants'omissions -- intended to rule regarding theirbreach-of-fiduciary-duty claim, as a matter for summary judgment. On this record, the Court concludes that the district courtcommitted error in granting summary judgment sua sponte withoutfirst giving the Plaintiffs a full and fair opportunity to presentlegal argument and evidence in support of their claim. It vacatedthe district court's entry of judgment in favor of GRMC on thePlaintiffs' breach-of-fiduciary-duty claim and remand for furtherproceedings.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/9cAz14 from Leagle.com.

GROUP HEALTH: 9th Cir. Flips Dismissal of State Claims in Hansen----------------------------------------------------------------In the case, KAREN HANSEN, on her own behalf and on behalf of othersimilarly situated persons; BETTE JORAM, on her own behalf and onbehalf of other similarly situated persons, Plaintiffs-Appellants,v. GROUP HEALTH COOPERATIVE, Defendant-Appellee, Case No. 16-35684(9th Cir.), Judge Ronald M. Gould of the U.S. Court of Appeals forthe Ninth Circuit reversed the district court's exercise of subjectmatter jurisdiction in dismissing some claims, and remanded withinstructions for the district court to return the entirety of theaction to the Washington superior court.

Hansen and Bette Joram are mental health providers who live andwork in Washington. Group Health Cooperative ("GHC"), now known asKaiser Foundation Health Plan of Washington, is a health insurancecompany with its principal place of business in Washington.

In August 2015, the Providers filed a class action complaintagainst GHC in a Washington state superior court. According to thecomplaint, in January 2007 GHC adopted screening criteria formental healthcare coverage called the Milliman Care Guidelines. GHC allegedly uses these guidelines as the "primary criteria" forauthorizing psychotherapy treatment.

The Providers claim that GHC's use of the Milliman Care Guidelineshas injured their practices in violation of the Washington ConsumerProtection Act. That statute makes unlawful unfair methods ofcompetition and unfair or deceptive acts or practices in theconduct of any trade or commerce.

Three of the Providers' allegations are at issue in the appeal. First, the Providers allege that GHC's licensing of the guidelinesis inherently unfair and deceptive because the treatment guidanceis biased against mental healthcare. Second, the Providers allegethat GHC deceptively uses the guidelines to avoid paying for mentalhealthcare coverage required by Washington's Mental Health ParityAct. And third, the Providers assert that GHC unfairly competes byemploying its own psychotherapists who strictly adhere to theguidelines and by discouraging patients from seeking treatment fromtherapists who do not work for the company. The Providers bringthe lawsuit on behalf of themselves and all Washingtonpsychotherapists who are not employed by GHC.

In September 2015, GHC removed the case to federal court. Itdetermined that Hansen and Joram had been assigned benefits bythree of their patients who were insured under employer-sponsoredhealth plans governed by the Employee Retirement Income SecurityAct of 1974 ("ERISA"). The patients made these assignments so thattheir therapists could appeal adverse benefit determinations ontheir behalf. GHC argued that the benefit assignments caused theProviders' claims to be completely preempted by ERISA, meaningthere was subject matter jurisdiction in federal court.

A month later, the Providers moved to remand the case to statecourt, while GHC moved to dismiss the complaint. In a consolidatedorder, the district court denied the motion to remand and grantedthe motion to dismiss in part, concluding that the Providers'claims were subject to conflict and express preemption to theextent that they concerned GHC's business practices inadministering ERISA plans. The court then declined to exercisesupplemental jurisdiction over the Providers' claims as to GHC'sadministration of non-ERISA plans, and remanded that part of thecase back to Washington state court. The Providers appeal.

Judge Gould finds that Providers' three claims for unfair anddeceptive business practices are based on independent duties beyondthose imposed by three of their patients' ERISA plans. Theseclaims do not satisfy the second prong of Aetna Health Inc. v.Davila, and hence the case was improperly removed to federalcourt.The Judge concludes that the federalism requires that federalcourts refrain from adjudicating state-law claims betweennon-diverse parties unless a purported state-law claim is really apoorly disguised federal claim. But in the case, the Providers'claims for unfair and deceptive business practices are not federalclaims improperly cloaked in the language of state law. Thoseclaims are basically that, as mental health professionals, theProviders are unfairly being cut out of the market of suppliers ofmental health services by GHC's unfair and deceptive use oftreatment guidelines.

To state their claims under Washington law, the Providers havealleged (1) an unfair or deceptive act or practice, (2) occurringin trade or commerce, (3) affecting the public interest, (4) injuryto a person's business or property, and (5) causation. Businessand property injuries of this sort are not of central concern toERISA, but instead pose important public policy issues under statelaw that are best decided by a state court. The Judge expresses noopinion whether these state-law claims are valid as pleaded, butrather concludes only that these claims do not mirror a suit forbenefits due under an ERISA plan.

Judge Gould holds that the Providers' claims do not fall within thescope of, and so are not completely preempted by, ERISA section502(a)(1)(B). He reversed the district court's exercise of subjectmatter jurisdiction in dismissing these claims, and remanded withinstructions for the district court to return the entirety of theaction to the Washington superior court.

A full-text copy of the Court's Sept. 4, 2018 Opinion is availableat https://is.gd/xA6oAN from Leagle.com.

H&E EQUIPMENT: Must Produce All LDW Reports in FDUTPA Suit----------------------------------------------------------Magistrate Judge Richard L. Bourgeois, Jr. of the U.S. DistrictCourt for the Middle District of Louisiana granted in part anddenied in part the Plaintiff's Second Motion to Compel in the case,IN & OUT WELDERS, INC., v. H & E EQUIPMENT SERVICES, INC., ET AL,Civil Action No. 16-86-JWD-RLB (M.D. La.).

On Oct. 5, 2015, In & Out brought the class action lawsuit againstH&E claiming that certain Loss Damage Waivers and EnvironmentalCharges contained in the H&E's equipment rental contractsconstitute a breach of contract, violate the duty of good faith andfair dealing, and violate Florida's Deceptive and Unfair TradePractices Act ("FDUTPA") and Texas's Deceptive TradePractices-Consumer Protection Act ("TDTPA"). In & Out alleges thatthe Loss Damage Waivers ("LDW") and Environmental Charges areincluded on pre-printed contracts, and that H&E misrepresent thenature and purpose of these fees, which In & Out asserts weresolely included to raise profits.

The Plaintiff seeks an order requiring additional responses toRequest for Production No. 2 and No. 5 of their Second Requests forProduction, Interrogatory No. 6 of their First Interrogatories, andRequests for Production No. 3 and No. 5 of their Third Requests forProduction.

On Sept. 5, 2018, the Court denied the Plaintiff's Motion for Leaveto Amend Complaint, which sought to allege that H&E was involved inan illegal RICO enterprise with its third-party insurers EPGInsurance, Inc. and Glynn General Corp. in which H&E marketed andresold its policies with EPG and Glynn to its customers as LDW.

The Plaintiff's Second Request for Production No. 2 seeksproduction of all documents between H&E and any insurer (includingbut not limited to Travelers, EPG, and Glynn, as referenced by KurtSorenson) that in any way concern the insurance that H&E paypremiums on for insurance on equipment H&E rent and for which itcharged a putative class member a LDW, also known as PhysicalDamage Waiver).

The Plaintiff's Third Request for Production No. 5 seeks productionof all correspondence (including emails) between H&E and EPG orGlynn regarding the LDW, including correspondence regardingpayments and insurance policies. H&E objected on various grounds,including irrelevance, over breadth, and undue burden.

The Plaintiff's Third Request for Production No. 3 seeks productionof all LDW Reports (similar to H&E's Rule 30(b)(6) depositionexhibit 14).

Their Second Request for Production No. 5 seeks production of alldocuments between H&E and Billtrust or between H&E and CCS that inany way concerns the Fees or Related costs.

The Plaintiff's Interrogatory No. 6 requests all facts and evidenceH&E believes support each of the affirmative defenses they raise intheir Answer.

Magistrate Judge Bourgeois granted in part and denied in part thePlaintiff's Second Motion to Compel. H&E must supplement theirresponses to the Plaintiff's Third Request for Production No. 3within 14 days of the date of the Order.

The Magistrate found that notwithstanding the fact that the Courthas denied the Plaintiff leave to add a RICO claim, the Plaintiff'sThird Request for Production No. 3 seeks information relevant tothe claims in the action, namely, whether the LDWs are excessiveand constitute unregulated insurance. He has reviewed an exampleof these reports filed under seal. The production of the two-pagemonthly reports will not result in an undue burden and isproportional to the needs of the case. Accordingly, the Magistraterequired H&E to produce the documents sought pursuant to thePlaintiff's Third Request for Production No. 3.

The parties will bear their own costs.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/K339Rb from Leagle.com.

HARVEY WEINSTEIN: Loses Bid to Dismiss Rape Case------------------------------------------------Dominic Patten, writing for Deadline, reports that just as videowent public on Sept. 12 of Harvey Weinstein apparently sexualharassing a women in a business meeting, attempts by the oncehigh-powered producer to close down a criminal case that could seehim behind bars for life was called out by the New York CountyDistrict Attorney's Office as "meritless" and that it "should bedenied."

"Defendant moves to dismiss the indictment or counts thereof onvarious grounds of alleged defect or deficiency in the presentationof the matter to the grand jury," said Cyrus Vance Jr's office onSept. 12 in a response to a sprawling and politically chargedAugust 3 motion to dismiss from Mr. Weinstein's primary attorneyBen Brafman.

"Inspection will reveal that the evidence before the grand juryamply supported the offenses charged, that the grand jury wasproperly instructed on the law, and that the integrity of theproceedings was unimpaired, and the People deny all allegations tothe contrary, and oppose disclosure of the grand jury minutes tothe defense," adds the filing (read it here) in New York SupremeCourt.

The D.A. isn't saying more at this time, but Mr. Weinstein's lawyerisn't buying the response.

"We believe that the People's response in its entirety makes itabsolutely clear that the case against Mr. Weinstein cannot besuccessfully prosecuted," said Mr. Brafman in a statement toDeadline. "Period."

While fending off "failure to provide exculpatory email evidence"and other claims, Deputy D.A. Joan Illuzzi-Orbon's response onSept. 12 is admittedly not altogether publicly complete. "As aresult of recent developments, the People serve this disclosure andadditional letter on the defense relating to Count Six of theindictment," The Sept. 12 filing notes of a Protective Order signedby Justice James Burke. "The investigation into facts set forth inthe disclosure are ongoing, and we will respond to defendant'smotion addressing count Six at the conclusion of thatinvestigation."

Out on $1 million bail after having plead not guilty to the firstround of indictment and having surrendered his passport earlierthis year, Mr. Weinstein is set to be back in Burke's Manhattancourtroom September 20. The disgraced producer was last in courtJuly 9 to enter another not guilty plea after the Manhattan D.A.'soffice slapped him with additional and more damning sex crimecharges July 2.

Those charges this summer mark an additional count of CriminalSexual Act in the First Degree for a forcible sexual act thatallegedly occurred in 2006. Joining the two women identified in a previous indictment in late May, the new indictment relates to anew alleged victim and includes two counts of Predatory SexualAssault.

The response from the Big Apple D.A. comes the same day that SkyNews revealed exclusive video of Weinstein allegedly sexuallyharassing Melissa Thompson in September 2011 in what was supposedto be a pitch meeting for a potential analytics service for theWeinstein Company.

As detailed previously in her class action suit with Larissa Gomesand Caitlin Dulany, the video (watch the full Sky segment here)shot on Thompson's laptop shows Weinstein being very touchy. Inaddition to telling Thompson he wants "a part of her," Weinstein isapparently, out of the camera's view, running his hands up her legas she objects -- "That's a little high, a little high," Thompsonsays in the video. In her jury-seeking action, Thompson saysWeinstein raped her later that day in a nearly hotel.

"What do I do?" Thompson told Sky she was thinking of the initialencounter with Weinstein. "How did I get myself here?"

Also on Sept. 12, a hearing in federal court in New York City heardarguments on Ms. Thompson, Ms. Gomes and Ms. Dulany's class actionand matters related to motions to dismiss. That hearing resulted inthe presiding judge allowing the plaintiffs to file an amendedcomplaint, which is due by October 31.

At another hearing on another case against the ex-movie mogul hit aprocedural bump in the road and saw RICO claims against Weinsteinin a class action by half a dozen alleged victims dismissed, fornow. After telling attorneys for Louisette Geiss, KatherineKendall, Zoe Brock, Sarah Ann Masse, Melissa Sagemiller, andNannette Klatt that they have not meant the legal standard todemonstrate that Weinstein had a pattern of actions thatconstituted sex trafficking, Judge Alvin Hellerstein offered theplaintiffs another chance. They now have until October 31, asignificant date it seems in the world of Weinstein, to file anamended compliant in the matter, which was first filed in Decemberof last year.

As well as being investigated by federal prosecutors and probes bythe Manhattan D.A.'s office and the NYPD, allegations againstWeinstein have been reviewed by the LAPD, which sent an initialtrio of cases to the L.A. County D.A. on February 8. Another casewas handed over to that same office early in August. As UK policecontinue their investigation, the Beverly Hills Police first passedtwo cases of sexual assault that they say occurred in theirjurisdiction to Lacey's office on January 2. [GN]

Appellant, Diana Dos Santos, appeals from two Law Division orders,the first approving the class action settlement, the secondentering a judgment of dismissal. She contends the Court's reviewis de novo. She submits that under de novo review, the Court mustreverse the Law Division orders, because notice to the classmembers was constitutionally lacking.

The Respondents, nominal Plaintiffs Goldberg and Velasquez, contendthe Court should review the Law Division orders under anabuse-of-discretion standard. They submit that under thedeferential abuse-of-discretion standard, it must affirm the LawDivision orders, the trial court having properly exercised itsdiscretion to approve the class action settlement and dismiss thecase.

According to the amended complaint, with the exception ofHealthport Technologies, the Defendants operate hospital facilitiesthroughout New Jersey. The complaint identifies Healthport as amedical record reproduction company and an agent of the Defendantsthat provides hospital records to requestors.

The fees for records a hospital may charge a patient or thepatient's authorized representative are regulated. The amendedcomplaint, which alleged the Defendants charged an unauthorized,unlawful $5 fee for certifying copies of hospital records, includedfour counts: violation of the New Jersey Administrative Code,violation of the New Jersey Consumer Fraud Act, fraudulent andnegligent misrepresentation, and unjust enrichment.

The proposed class was all patients who, during the time period ofMarch 4, 2008 through the present, requested copies of medicalrecords in the State of New Jersey, either personally or throughtheir legally authorized representatives (as such terms are definedin N.J.A.C. 8:43G-15.3(d)), in writing, from the Defendants and whohave suffered economic damages as a result of the payment ofservice fees that were imposed by the Defendants in excess of thoseexpressly authorized under N.J.A.C. 8:43G-15.3(d).

The Court concludes that the trial court did not abuse itsdiscretion in determining the class notice was the best noticepracticable under the circumstances. In the underlying action, theknown medical record requestors were the attorneys who requestedthe records on behalf of their clients. Although the attorneys mayhave been reimbursed the disputed certification fees by theirclients, the only contact the Defendants had concerning therequested records was with the attorneys and law firms requestingthem. Therefore, it was reasonable for notice to be sent to theattorneys.

It does not find the trial court abused its discretion in findingthe Appellant's proposed notice was less practicable than thatused. The Appellant argues notice should be sent either directlyto the underlying patients, or to both the underlying patients andtheir attorneys. However, the Court finds that the former methodoverlooks that the attorneys requested the documents and payed thecertification fee, and the latter method raises the issue ofduplicative claims. In addition, due to privacy considerations, itwas unclear who was permitted to provide patient names.

For these reasons, the Superior Court concludes the trial court didnot abuse its discretion in determining that sending the notice tothe requesting attorney was the most effective and efficient mannerto ensure notice reached the proper claimant. Accordingly, itaffirmed.

A full-text copy of the Court's Sept. 5, 2018 Opinion is availableat https://is.gd/bkM2x9 from Leagle.com.

Rodriguez, Isaac Chavez Duarte, and Jose Alfredo Soto Servin filedtheir Second Amended Complaint on Aug. 16, 2017. The Plaintiffsare Mexican nationals who came to the United States under thefederal H-2B or H-2R temporary foreign worker visa programs to workfor defendant Hermes Landscaping, Inc. in Lenexa, Kansas.

The H-2B program is a guest-worker visa program, and it allowspersons having a residence in a foreign country which he has nointention of abandoning who is coming temporarily to the UnitedStates to perform other temporary service or labor if unemployedpersons capable of performing such service or labor cannot be foundin the country. It program is for returning H-2B workers.

The Plaintiffs claim that the Defendant has sponsored workers since2012 and in recent years has sponsored around 100 workers annually-- 105 in 2016; 90 in 2015; 115 in 2014; 92 in 2013; 100 in 2012. They claim the Defendant failed to pay them for all the hours theyworked, including overtime doing residential and commerciallandscape work for the Defendant in the greater Kansas City area,as well as incurring work and travel expenses for which they werenot reimbursed.

They bring the action pursuant to the Fair Labor Standards Act of1938 ("FLSA"); the Kansas Wage Payment Act; the Missouri MinimumWage Law; as well as for breach of contract and quantum meruitclaims. The Plaintiffs bring the suit on behalf of themselves andall other H-2B or H-2R workers who worked for defendant since 2012and who may seek to opt into the FLSA suit.

On Jan. 4, 2018, the parties stipulated to conditionalcertification and notice of collective action to send to theputative class members, which the Court entered on Jan. 10, 2018. On Feb. 15, 2018, the Plaintiffs filed their motion to certify thecase as a class action pursuant to Fed. R. Civ. P. 23(b)(3) forclaims II (Missouri Overtime Compensation Violation); III (KansasWage Payment Violation); V (Breach of Contract); VII (PrevailingWage Rate); and VIII (Quantum Meruit); to be appointed the classrepresentatives; to have their counsel appointed as the classcounsel, and for authorization to send notices to the putativeclass members.

In a March 2018 decision, Judge William L. Osteen, Jr. of the U.S.District Court for the Middle District of North Carolina granted inpart and denied in part the Plaintiffs' Motion to Remand; (ii)denied as moot the Plaintiffs' Motion for Expedited Determinationof Motion to Remand; and (iii) granted in part and denied in partthe Plaintiffs' Motion to Defer Time to File Federal Motion forClass Certification.

The Plaintiffs commenced the putative class action in Durham Countyin the Superior Court Division of the General Court of Justice ofthe State of North Carolina on Nov. 21, 2016, against DefendantPRA. The Defendant removed the case to federal district court onDec. 9, 2016, on the basis of diversity jurisdiction pursuant tothe Class Action Fairness Act of 2005 ("CAFA"). The Plaintiffsmoved the District Court under 28 U.S.C. Section 1447(c) to remandthe case to state court on the grounds that the District Courtlacks jurisdiction over the claims pursuant to the Rooker-Feldmandoctrine.

The Plaintiffs' Complaint seeks to set aside certain defaultjudgments obtained by PRA in North Carolina state courts, and seeksto recover actual damages and civil penalties for allegedviolations of N.C. Gen. Stat. Sections 58-70-115(7), 58-70-130, and58-70-155.

PRA is a debt buyer and collection agency under North Carolina law. As a debt buyer, PRA is required to file certain properlyauthenticated evidence with a court prior to entry of a defaultjudgment against a debtor. Rule 55(b) of the North Carolina Rulesof Civil Procedure also governs the entry of default judgments. When a plaintiff's claim is for a sum certain or for a sum whichcan by computation be made certain, then the clerk has theauthority to enter a default judgment. Absent a sum certain, thedefault judgment must be entered by a judge.

Since Section 58-70-155 became effective in October 2009, PRA hasfiled thousands of lawsuits in North Carolina state courts in whichit subsequently obtained default judgments. PRA obtained defaultjudgments against each of the named Plaintiffs in the action. ThePlaintiffs claim that PRA failed to satisfy the Section 58-70-155prerequisites that required it to file properly authenticatedbusiness records providing an itemization of the amount claimed tobe owed. Plaintiff Townes has additionally filed and been granteda motion pursuant to Rule 60(b) of the North Carolina Rules ofCivil Procedure to set aside her default judgment.

In his ruling, Judge Osteen finds that the Court lacks jurisdictionover the claims of Plaintiffs Pounds, Miller, Sayaphet-Tyler, andHall pursuant to the Rooker-Feldman doctrine. He granted in partand denied in part the Plaintiffs' Motion to Remand. He remandedthe claims of Plaintiffs Pounds, Miller, Sayaphet-Tyler, and Hallto the General Court of Justice, Superior Court Division, DurhamCounty, North Carolina, for further disposition. He denied themotion as to the claims of Plaintiff Townes. The Judge directedthe Clerk of Court to send a certified copy of the MemorandumOpinion and Order to the Clerk of Superior Court in Durham County.

A full-text copy of the Court's March 28, 2018 Memorandum Opinionand Order is available at https://is.gd/sRH3Vi from Leagle.com.

Alam was an employee who worked as a clerk at a gas station andconvenience store owned, operated and controlled by Kabani. Alamdid not receive overtime pay for hours worked in excess of 40during each workweek. [BN]

KPH TURCOT: Not Defendant in AGQ Class Action---------------------------------------------P.A. Sevigny, writing for The Suburban, reports that contrary towhat was published in a recent issue of The Suburban, the AttorneyGeneral of Québec (AGQ) is now the sole defendant in a classaction suit that was initially filed against the AGQ and itspartners that included the consortium known as KPH Turcot.

According to court documents, (page 2, #3), ". . . the applicationwas heard on January 22 and 23, 2018, at a time when the nameddefendants included the AGQ, but also a consortium and itspartners, KPH Turcot, un partenariat S.E.N.C. (collectively KPH),and a contractor who was granted a design-built contract forcertain work related to the project."

However, further reading of the 30 page judgement indicates that onthe second day of the hearing, KPH Turcot lawyers convinced thecourt to ". . . discontinue the authorization proceedings againstKPH," after which the consortium was reduced to little more than afootnote in Superior Court Judge Karen Roger's decision to allowthe case to proceed as requested. [GN]

Sawyer, doing business as Sharonville Family Medicine, is a primarycare medical practice located in Sharonville, Ohio. Sawyer has atelephone number that is used to receive faxes. Defendant KRSGlobal Biotechnology, Inc. is a Florida compounding pharmacy withnearly 90 employees, almost 20 of whom are sales representatives.

On Oct. 9, 2015, KRS sent an unsolicited one-page advertisement forintravenous infusion sets and/or other products ("Infusion KitFax") to Sawyer. KRS admits that it had no prior businessrelationship with Sawyer and that KRS did not seek or obtainpermission from Sawyer to send the Infusion Kit Fax prior to doingso. Although KRS admits that it sent an unsolicited fax to Sawyer,it maintains that the fax was sent in violation of KRS'sestablished business practice to send fax advertisements only toexisting customers and others who have agreed to receive the faxedadvertisements.

In October 2015, RingCentral provided KRS' telecommunicationsservices. In response to a subpoena, RingCentral produced KRS'call and fax log data. According to the fax log, KRS transmitted34,773 outbound faxes on Oct. 8 and Oct. 9, 2015. More than 99% ofthese faxes originated from the same number as the number used tosend Sawyer the Infusion Kit Fax. KRS disputes that it faxed34,773 copies of the Infusion Kit Fax, but it admits it transmittedbetween 1,000 and 10,000 of that particular advertisement. The faxlog reflects only whether a fax was successfully transmitted, notthe content of the fax.

Sawyer initiated the putative class action under the "junk fax"provision of the Telephone Consumer Protection Act of 1991("TCPA"). Sawyer filed a Motion for Class Certification in whichit seeks to represent all 34,773 fax recipients it claims receivedthe Infusion Kit Fax on Oct. 8 or Oct. 9, 2015. The Court referredthe motion to a Magistrate Judge for a report and recommendation,pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C.Section 636(b)(1)(B).

The Magistrate Judge conducted oral argument on May 14, 2018. In awell-reasoned report, the Magistrate Judge explained, in part, thatSawyer failed to satisfy the "predominance" requirement of FederalCivil Rule 23(b)(3) as individualized questions of consent toreceive the Infusion Kit Fax prevented common questions frompredominating and recommended that Sawyer's Motion to Certify Classbe denied.

Sawyer has filed Objections to the Report and Recommendation towhich KRS has responded. Specifically, Sawyer makes the followingobjections: (i) KRS' evidence of permission is insufficient toundermine the predominance requirement; (ii) KRS bears the burdenof proof on the permission defense; (iii) the Magistrate Judge didnot apply the appropriate legal standard for evaluating whether theprerequisites of commonality, typicality, and adequacy have beenmet; and (iv) the Magistrate Judge failed to make a clearrecommendation as to whether the prerequisites of adequacy andsuperiority have been met.

Judge Dlott holds that the Magistrate Judge entered a thorough andthoughtful Report and Recommendation in the case. As part of thatreport, she properly concluded that Sawyer has failed to satisfythe predominance requirement of Rule 23(b)(3). The Judge, afterreviewing the matter de novo, agrees. Because Sawyer has failed tofulfill the requirements of Rule 23(b), his remaining objectionsare moot.

For the foregoing reasons, the Judge orverruled the Plaintiff'sObjections to the Magistrate Judge's Report and Recommendation, anddenied the Plaintiff's Motion for Class Certification.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/2YaU6U from Leagle.com.

LIONS GATE: Agreement in Principle Reached in Starz Class Suit--------------------------------------------------------------The parties in the case entitled, In re Starz StockholderLitigation, Consolidated C.A. No. 12584-VCG, have reached anagreement in principle providing for the settlement of anddismissal of the case for a settlement payment in the amount of$92.5 million.

Lions Gate Entertainment Corp. said in its Form 8-K filing with theU.S. Securities and Exchange Commission said, "As previouslydisclosed by Lions Gate Entertainment Corp. (the "Company"),between July 19, 2016 and August 30, 2016, seven putative classaction complaints were filed by purported stockholders of Starz, asubsidiary of the Company, in the Court of Chancery of the State ofDelaware against former members of the board of directors of Starz,John C. Malone and the Company (the "Litigation") in connectionwith the acquisition of Starz by the Company in December 2016. TheLitigation was consolidated into In re Starz StockholderLitigation, Consolidated C.A. No. 12584-VCG."

On August 22, 2018, the parties to the Litigation reached anagreement in principle providing for the settlement of theLitigation on the terms and conditions set forth in an executedterm sheet (the "Term Sheet"). The Term Sheet provides for, amongother things, the final dismissal of the Litigation in exchange fora settlement payment made in the amount of $92.5 million. Insurancereimbursement is being sought and is expected for a significantportion of this amount.

The settlement of the Litigation is subject to the final approvalof the Court of Chancery of the State of Delaware. In addition, thesettlement of the Litigation is not contingent or dependent in anyway on, and does not release or resolve claims for, the separatestatutory appraisal action brought by petitioners in In re StarzAppraisal, Consolidated CA. No. 12968-VCG.

Lions Gate Entertainment Corp. engages in motion picture productionand distribution, television programming and syndication, homeentertainment, interactive ventures and games, and location-basedentertainment in Canada, the United States, and internationally.

Loews Hotels, Inc. owns and operates a chain of hotels and resortsfor business, leisure, and family travelers in the United Statesand Canada. Loews Hotels, Inc. operates as a subsidiary of LoewsCorporation. [BN]

The Plaintiff is a participant in the Inlandboatmen's Union of thePacific National Pension Plan (the "IBU Plan"). The IBU Plan wasestablished on July 1, 1981, pursuant to a Trust Agreement betweenthe Inlandboatmen's Union of the Pacific and several employers.

The Plaintiff alleges in the compliant that the Defendants breachedtheir fiduciary duties to the participants in the IBU Plan byallowing the IBU Plan to incur and failing to timely eliminate anunfunded vested benefit liability ("UVB") over the last nine years.That UVB has now grown to an amount in excess of $73 million as ofJune 30, 2017.

The IBU Trust Documents required the trustees to meet and takeaction to modify plan benefits and contributions in order toeliminate and avoid incurring UVB. However, the trustees failed todo that despite full knowledge of the UVB, until now, in 2018, theyseek to adopt a Rehabilitation Plan that imposes changes inbenefits only on those who retire after July 1, 2018.

If the Trustees would have eliminated the UVB when it was firstincurred in 2009, all participants at that time would have sharedin the reduction in benefits to eliminate the $37 million UVB.However, rather than eliminating the UVB in 2009, the Trustees letthe UVB ride, and now, in 2018, it has grown to $73 million.

When the City of San Jose enacted an ordinance that established aminimum wage of $10/hour, the San Jose Marriott Hotel continued topay McCray and other employees less. It turned out that McCray'sunion had negotiated with Marriott and agreed to waive theordinance's minimum-wage requirement so that it could bargain forother benefits for its members.

McCray sued Marriott in state court. He says that the ordinancedoesn't allow for waiver, and so Marriott owes him the differencebetween what he was paid and the new minimum wage. Marriottremoved the case to federal court on the basis that McCray's claimsare preempted by Section 301 of the Labor Management Relations Act("LMRA"). The district court concluded that McCray failed to firstexhaust his claim through a required grievance process and grantedsummary judgment to Marriott. The appeal followed.

Judge Diaz finds that the San Jose ordinance and relevant state lawafford workers in San Jose the right to be paid the minimum wageestablished by the ordinance, subject to the requirements ofCalifornia law. That the ordinance contains an opt-out mechanismdoesn't change the fact that these rights originate outside of thecollective-bargaining agreement ("CBA"). He therefore holds thatMcCray's claims arise independently under state law and are notsubject to Section 301 preemption on that basis.

The Judge next finds that the degree of analysis of the CBA thecase requires isn't altogether different from checking an agreementto identify, for example, an employee's pay rate. And in manyrespects, it presents the inverse of the issue in Burnside v.Kiewit Pac. Corp.: there, the Court said that looking at a CBA tosee whether it contained a valid waiver didn't require"interpreting" the agreement. The Judge fails to see why theresult should be any different in the case simply because a waiverdoes exist.

Finally, the Judge recognizes that although McCray hasn't yetchallenged the substance of the waiver, he may attempt to do solater in the litigation. But that speculative possibility isn'tenough to warrant preemption at this early stage. As McCray hasframed his claims (and argued them thus far), his case will rise orfall based on interpretation of the local ordinance, notinterpretation of the CBA. The possibility that things couldchange down the road is simply not enough to warrant preemptionnow. In sum, the Judge concludes that the district court didn't havejurisdiction to hear the case, because the LMRA doesn't preemptMcCray's claims. The district court therefore erred in denyingMcCray's motion to remand this case to state court and shouldn'thave reached the merits of Marriott's motion for summary judgment. Accordingly, Judge Diaz vacated the district court's denial ofMcCray's motion to remand and also vacated its grant of summaryjudgment in favor of Marriott. Upon remand, the district courtshould return the case to state court for further proceedings.

A full-text copy of the Court's Aug. 31, 2018 Opinion is availableat https://is.gd/ykBw60 from Leagle.com.

MERCK & CO: 44 Lawsuits Filed over Zostavax Vaccine---------------------------------------------------At least 44 lawsuits have been filed against Merck & Co., Inc.early this year seeking to recover damages as a result of personalinjuries suffered from the use of Zostavax (TM) vaccine.

Each of the complaints relates that the Zostavax (TM) vaccine wasand is intended for the long-term prevention of herpes zoster (orshingles). It is manufactured, designed, licensed, processed,assembled, marketed, promoted, packaged, labeled, distributed,supplied, and/or sold by Defendants. In each of the lawsuits, thePlaintiff was inoculated with the Zostavax (TM) vaccine for thelong-term prevention of shingles. However, the Plaintiff wasdiagnosed with shingles after being inoculated with the Zostavax(TM) vaccine and suffered serious physical, emotional, and economicdamages as a result of her shingles and associated injuries.

MICHIGAN: $199K Attorneys' Fees Awarded in Suit vs. MDHHS---------------------------------------------------------In the case, M.R., on behalf of himself and all others similarlysituated, Plaintiff, v. NICK LYON, in his official capacity Only asExecutive Director of the MICHIGAN DEPARTMENT OF HEALTH AND HUMANSERVICES, Defendant, Case No. 2:17-cv-11184-DPH-RSW (E.D. Mich.),Judge Denise Page Hood of the U.S. District Court for the EasternDistrict of Michigan, Southern Division, granted the ClassCounsel's Motion for an Award of Attorneys' Fees and Reimbursementof Expenses.

The Class Plaintiff and Defendant Lyon, in his official capacityonly as the Executive Director of the Michigan Department of Healthand Human Services ("MDHHS"), agree on the Motion for Attorneys'Fees. The Class Counsel requests that the Court issues an award of$199,000 in attorneys' fees, as agreed upon in the preliminarilyapproved Settlement Agreement.

One Class Member, Mr. Kirk Leaphart, filed an Objection to theproposed settlement, arguing that the exclusive incentive award isunfair and that the Class Counsel's request for attorneys' fees isexcessive. Leaphart requests that each Class Member who filed, andwas unsuccessful, in bringing administration action against theDefendant's state agency for the relief sought in the litigation,also be granted an incentive award of $5,000.

Judge Hood finds that the Class Counsel's requested attorneys' feeaward is appropriate. First, the Plaintiff class will receive atremendous benefit from the Class Counsel's work in the case. Second, she finds the requested amount of attorneys' feesreasonable considering that the Class Counsel has spent more than896.3 hours pursuing the litigation, and the Class Counsel requestsa fee substantially lower than the Class Counsel would normallyreceive for the services provided in the case. Third, the ClassCounsel rendered services on a contingent fee basis. Fourth,public policy supports approving the Class Counsel's requestedfees. Fifth, the case involved certifying a class to afford thePlaintiff Class Member's statewide relief in a case involvingnumerous factually and legally complex issues. Sixth, the ClassCounsel is skilled and knowledgeable in prosecuting class actions,and has negotiated and recovered millions of dollars in classactions throughout the United States.

Based on the factors considered, the Judge denied the objection tothe amount of attorneys' fees, and granted the Plaintiffs' Motionfor an Award of Attorneys' Fees and Reimbursement of Expensespursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2). The Plaintiffs are entitled to attorney fees in the amount of$199,000, which is inclusive of all costs and expenses incurred inthe matter. Their Class Representative, M.R., is entitled to anincentive award in the amount of $5,000.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/aSbj9p from Leagle.com.

Nick Lyon, in his official capacity only as Executive Director ofthe Michigan Department of Health and Human Services, Defendant,represented by Joshua S. Smith, MI Department of Attorney GeneralHealth Education and Family Services & Kelley Turnock McLean,Department of Attorney General.

MICHIGAN: Settlement in Suit vs. MDHHS Has Final Approval---------------------------------------------------------In the case, M.R., on behalf of herself and all others similarlysituated, Plaintiff, v. NICK LYON, in his official capacity only asExecutive Director of the Michigan Department of Health and HumanServices, Defendant, Case No. 2:17-cv-11184-DPH-RSW (E.D. Mich.),Judge Denise Page Hood of the U.S. District Court for the EasternDistrict of Michigan, Southern Division, granted the Plaintiffs'Motion for Final Approval of Class Settlement.

On Aug. 15, 2018, Plaintiff M.R. and Class Counsel DickinsonWright, PLLC, for themselves and on behalf of the certified class,moved for final approval of the class action settlement and ReleaseAgreement. The Court granted Preliminary Approval on May 29, 2018. The Defendant does not object to the Motion. A fairness hearingwas held on Aug. 8, 2018. One objection and two letters werereceived by the Court.

One objection was filed, "Class Member 60's Kirk Leaphart'sObjections in Part to Class Action Settlement Agreement andRelease." The sole objector to the class settlement argues thatthe amount of attorneys' fees requested by the Class Counsel isexcessive. That objection is addressed in a separate orderawarding attorneys' fees.

On April 14, 2017, the Plaintiff filed the putative class action inthe U.S. District Court for the Eastern District of Michigan,Southern Division captioned J.V. on behalf of herself and allothers similarly situated v. Nick Lyon, in his official capacityonly as executive director of the Michigan Department of Health andHuman Services, Case No.: 2:17-cv-11184-DPH-RSW.

The terms of the Settlement Agreement include but are not limitedto the following:

a. The Defendant agrees to replace the MDDHS PriorAuthorization Criteria and institute the Amended PriorAuthorization Criteria to provide coverage for direct-actingantiviral treatment to all Eligible Michigan Medicaid beneficiariesdiagnosed with chronic Hepatitis C.

b. The Defendant agrees to expand direct-acting antiviraltreatment coverage to all Eligible Michigan Medicaid beneficiariesdiagnosed with chronic Hepatitis C based on the following schedule:(i) it will provide coverage for all eligible beneficiaries with ametavir fibrosis score of F-1 and above on Oct. 1, 2018; and (ii)it will provide coverage for all beneficiaries with a metarvirfibrosis score of F-0 an above on Oct. 1, 2019.

c. The Amended Prior Authorization Criteria will include, butis not limited to, the following provisions;

i. the direct-acting antiviral medication must beprescribed by a gastroenterologist, hepatologist, liver transplantor infectious disease physician. If the prescribing provider isnot one of the identified specialists noted, the prescriber mustsubmit documentation of consultation/collaboration of the specificcase with one of the aforementioned specialists which reflectsdiscussion of the history and agreement with the plan of care withthe date noted in the progress note.

ii. Documentation of the patient's use of Illegal Drugsor abuse of alcohol must be noted (i.e., current abuse of IV drugsor alcohol or abuse within the past 6 months). The MichiganDepartment of Health and Human Services will consider thisinformation for the sole purpose of optimizing treatment.

iii. Documentation of the patient's commitment to theplanned course of treatment and monitoring (including SVR 12) aswell as patient education addressing ways to reduce the risks forreinfection must be submitted.

d. The Defendant reserves the right to revise the AmendedPrior Authorization Criteria and Claim Form to incorporate updatedclinical recommendations or other best practices, consistent withthe Agreement.

e. The Defendant agrees to provide coverage for direct-actingantiviral medications that are (i) approved by the U.S. Food andDrug Administration for the treatment of chronic Hepatitis C; (ii)have a federal Medicaid rebate; and (iii) are listed on theDefendant's Preferred Drug List as preferred at the time thebeneficiary is approved for treatment.

f. If a direct-acting antiviral medication is no longerapproved by the U.S. Food and Drug Administration for the treatmentof chronic Hepatitis C or no longer on the Defendant's PreferredDrug List, it will no longer be covered.

Judge Hood, following the fairness hearing, finds there is noindication of fraud or collusion in the case. The opinions of theclass counsel and class representative -- based on the SettlementAgreement entered into by the Parties -- show that they favor theAgreement and agree the terms are fair. The Judge finds that theClass Representative has obtained a significant, potentiallylife-saving benefit, for the Class. The Settlement Agreement isalso in the public interest for people to receive access to neededhealth care.

As the Court determined in granting preliminary approval on May 29,2018, Dickson Wright PLLC (the "Firm") has invested significanttime and effort identifying, researching, and investigating theclaims in the action. The Firm has developed a litigation strategyfor Plaintiff and the putative class members, and negotiated theproposed Settlement Agreement. It has been appointed as the classcounsel in other recent health care-related litigation before theCourt, has experience handling class actions and other complexlitigation, and has the resources to represent this class in thisaction. The Firm is qualified to be the class counsel in thelitigation pursuant to Federal Rule of Civil Procedure 23(g).

For the reasons set forth, Judge Hood certified the controversy asa class action. The class certified is defined as all individualsthat are or will be enrolled in Michigan's Medicaid Program at thetime the Order is entered; have been or will be diagnosed with achronic infection of the Hepatitis C Virus; are 18 years of age orolder; require, or in the future will require, treatment forHepatitis C with direct-acting antiviral medication; and do notmeet the Michigan Department of Health and Human Services' currenttreatment criteria, which restricts direct-acting antiviraltreatment to individuals with a minimum metavir fibrosis scorecriteria of F-2.

Te Judge appointed named Plaintiff, M.R., as the classrepresentative; and Dickinson Wright as the class counsel. Theapproval of the Parties' class action Settlement Agreement isgranted.

On Sept. 21, 2018, the Parties will mail notice of settlementapproval and claim forms to class members. On Oct. 1, 2018,Settlement Agreement terms will go into full effect.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/5nPLlg from Leagle.com.

After MCM sent a debt collection letter with an allegedlytime-sensitive discount offer, Preston filed the putative classaction suit against MCM claiming violations of the Fair DebtCollection Practices Act ("FDCPA"), and the Illinois Consumer Fraudand Deceptive Business Practices Act ("ICFA").

In July 2017, MCM sent Preston a debt collection letter, enclosedin an envelope with the words "Time Sensitive Document" printed onits exterior in bold font. The letter contained informationregarding a debt that MCM sought to collect from Preston, as wellas potential discounted plans for Preston to pay off his debt if hesubmitted a payment by a certain date. Specifically, the letteroutlined two discounted payment options, with one offering 40% offthe total debt balance if Preston made one single payment by Aug.18, 2017, and another offering 20% off the balance if he made sixmonthly installment payments, with the first payment due by August18, 2017. The letter urged Preston to "act now" to take advantageof the discounts. At the bottom of the letter, MCM stated thatthey're not obligated to renew any offers provided.

Preston claims that the language on the exterior of the envelopeviolates Section 1692f(8) and that the language on its own and incombination with the letter's discount offer suggests a false senseof urgency in violation of Section 1692e(2)(A), e(10), and Section1692f.

Judge Ellis agrees that MCM's use of language on the outside of theenvelope falls within the benign language exception to Section1692f(8) and so Preston's Section 1692f(8) claim fails. She alsofinds that the language, alone or in combination with the discountoffer, does not violate Section 1692e(2)(A) or e(10) because MCMproperly employed safe harbor language approved by the SeventhCircuit in connection with its discount offer. As this disposes ofthe FDCPA claims over which the Court has original jurisdiction,the Judge declines to exercise supplemental jurisdiction over theICFA state law claim and dismisses that claim without prejudice.

For the foregoing reasons, Judge Ellis granted MCM's motion todismiss. She dismissed Preston's individual FDCPA claims (CountsI, III, V) with prejudice and his class based FDCPA claims (CountsII, IV, and VI) without prejudice. She dismissed the ICFA claim(Count VII) without prejudice to refiling in state court andterminated the case.

A full-text copy of the Court's Sept. 4, 2018 Opinion and Order isavailable at https://is.gd/Yqnyw9 from Leagle.com.

Midland Funding is a company that buys defaulted consumer debts,which it collects through other collection agencies, such asMidland Credit Management. Mr. Trichell alleges that more thanseven years before he filed this complaint, he allegedly defaultedon an unspecified amount of credit card debt. Consistent with itsbusiness model, Midland Funding acquired Mr. Trichell's defaulteddebt and in 2017, it had Midland Credit Management send him threecollection letters stating that he had a balance due of $42,859.55. But, under Alabama law, by the time Midland Credit Management sentthose letters, the debt was legally unenforceable because thestatute of limitations barred any lawsuit to recover the defaulteddebt.

Mr. Trichell, on behalf of himself individually and all personssimilarly situated in the State of Alabama, asserts that theDefendants' actions (1) violated 15 U.S.C. Section 1692e byattempting to collect time-barred debts using deceptive andmisleading collection letters (Count One); and (2) violated 15U.S.C. Section 1692f by using unfair or unconscionable means tocollect or attempt to collect a debt (Count Two).

The Defendants move to dismiss the complaint for failure to state aclaim, under Federal Rule of Civil Procedure 12(b)(6).

Judge Axon concludes that the collection letters do not deceptivelyor misleadingly imply that the debts are legally enforceable. Shealso concludes that the rest of the language from the collectionletters is not, as a matter of law, deceptive or misleading. As amatter of law, even a least sophisticated consumer would not findMidland Credit Management's collection letters deceptive ormisleading. Even accepting as true all facts asserted by Mr.Trichell and making all reasonable inferences in his favor, MidlandFunding and Midland Credit Management have not violated Section1692e of the FDCPA.

Because a least sophisticated consumer would not find thecollection letters sent to Mr. Trichell deceptive or misleading,Judge Axon garnted the motion to dismiss the complaint, anddismissed without prejudice the complaint. The Judge will enter aseparate order consistent with her Opinion.

A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion isavailable at https://is.gd/y6zRqq from Leagle.com.

MiTAC Digital Corporation provides portable GPS navigation consumerelectronics. The company was founded in 1986 and is based in SantaClara, California. As of January 13, 2009, MiTAC DigitalCorporation operates as a subsidiary of MiTAC International Corp.[BN]

MYRIAD GENETICS: Continues to Defend Kessman Class Action---------------------------------------------------------Myriad Genetics, Inc. said in its Form 10-K report filed with theU.S. Securities and Exchange Commission for the fiscal year endedJune 30, 2018, that the company continues to defend a purportedclass action lawsuit filed by Matthew Kessman.

On April 20, 2018, Matthew Kessman, individually and on behalf ofall others similarly situated, filed a purported class actioncomplaint in the United States District Court, District of Utah,No. 2:18-cv-0336-DAK-EJF, against the company, its President andChief Executive Officer, Mark C. Capone, its former President andChief Executive Officer, Peter D. Meldrum, its Executive VicePresident and Chief Financial Officer, R. Bryan Riggsbee, and itsformer Chief Financial Officer, James S. Evans.

The action is premised upon allegations that the defendants madefalse and misleading statements regarding the company's business,operational and compliance policies, specifically by allegedlyfailing to disclose that the Company was allegedly submitting falseor otherwise improper claims for payment under Medicare andMedicaid for our hereditary cancer testing.

The plaintiff seeks certification as the purported classrepresentative and the payment of damages allegedly sustained byplaintiff and the purported class by reason of the allegations setforth in the complaint, plus interest, and legal and other costsand fees.

NATIONAL HOCKEY: Late White Bear Player's Family Files Suit-----------------------------------------------------------Bruce Strand, writing for White Bear Press, reports that allegingthat players like need not have suffered from avoidable braindamage, the family of the late White Bear Lake hockey player hasfiled a wrongful death lawsuit against the National Hockey League(NHL).

Scott Parker, Jeff's brother, filed the suit late August inCalifornia Superior Court for Los Angeles County, in the capacityas trustee of his brother's estate, also naming Jeff's 5-year-olddaughter as a plaintiff.

"My brother Jeff signed up for the concussion lawsuit, and we feelobligated to follow up on his wish to do this," said Mr. Parker, ahigh school teacher and hockey coach in Chippewa Falls, Wisconsin."We were instructed by the judge that this is the way to go aboutit.

"It wasn't an easy decision for the family, but we kept going backto knowing that Jeff wanted to help younger players in the NHL, tolet them know what is coming."

Jeff Parker was among 150-plus former players in a lawsuitoriginally filed in 2013 alleging that the NHL promoted violenceand fighting to make the league more popular and profitable, whiledownplaying health risks associated with concussions.

That was intended to be a class-action case, but a federal judge inSt. Paul, Susan Nelson, rejected the class-action status July 13,on the grounds that it would present "significant case managementdifficulties." As a consequence of that ruling, ex-players (or their families) had to choose whether to go it aloneagainst the league. The Parkers elected to sue.

The 83-page lawsuit acknowledged that former players knew theymight get injured playing in the league, but did not sign up foravoidable brain damage. A key passage reads: "The NHL was aware ofthe evidence and the risks associated with repetitive traumaticbrain injuries for many decades, but deliberately ignored andactively concealed the information from the players, including thelate Jeff Parker."

It goes on to claim that the league "either took no steps toprotect and educate its players or took insufficient steps to makeplayers aware of the real risks of playing in the NHL, which wouldhave protected players from unnecessary long-term effects of headtrauma."

Jeff Parker played four NHL seasons for the Buffalo Sabres andHartford Whalers. He suffered multiple concussions, most notablythe one that ended his career in 1991 when his head struck a metalstanchion as he was driven hard into the glass, while playing withHartford against the Washington Caps.

Mr. Parker, who helped White Bear Mariner reach the state finals asa senior in 1982, and was one of the leaders of Michigan State'snational champion team in 1986, passed away Sept. 11, 2017, at age53. His death was attributed to a blood infection.

The former hockey hero had been working as a bartender in a St.Paul bar in recent years. He told White Bear Press and other mediaoutlets in interviews that he dealt with a constant ringing in hisears, loss of taste, and sensitivity to light, which was why hetook the bartender job. He was also disoriented with memory loss attimes, his brother said.

"The second (reason for filing) was the result of the CTE test,"Mr. Scott Parker said. "If we had not donated the brain, we wouldnot have much of a case, but . . . the results of the test beingwhat they were, knowing how far along his CTE was, that helped usmake this very difficult decision."

Mr. Parker's Facebook page is filled with links to stories offormer NHLers struggling with head injuries. One article hittingclose to home concerned Joe Murphy, a former Michigan Stateteammate of Jeff's and a first-round draft pick. Scott was dismayedto learn that Murphy is homeless and doesn't even have a cellphone.

"Our whole objective is to make the NHL accountable," said Mr.Parker. "This is not about Jeff; it's about other young men who aresuffering . . . This ruling, looking at it, I don't know, I thinkmakes it more difficult for some of the guys who are distraught anddon't have the resources, who don't even have a cell phone."

Mr. Parker was interviewed about Jeff's case by the Chippewa FallsLeader-Telegram in May. About the CTE discovery in Jeff's brain, hecommented, "I knew it all along -- when he was late for his brotherJohn's wedding, when he went to the wrong place for a TV interview,when he would come to my house and go down in the basement becausehe needed to be in a dark place." [GN]

NATIONWIDE INSURANCE: Remand of Sibalich to State Court Suggested-----------------------------------------------------------------In the case, KAREN SIBALICH, et al., Plaintiffs, v. NATIONWIDEINSURANCE COMPANY, Defendant, Civil Action No. 18-7818 (SOW) (LDW)(D. N.J.), Magistrate Judge Leda Dunn Wettre of the U.S. DistrictCourt for the District of New Jersey recommended that the Courtgrants the Plaintiffs' motion for remand.

On March 14, 2018 at 3:20 p.m., a process server personallydelivered the summons and complaint to Kim Mangan, a legaldepartment senior analist at One Nationwide Plaza in Columbus,Ohio. The Plaintiffs filed an affidavit of service with the NewJersey state court on March 29, 2018.

Nationwide employs CSC, a third-party service provider, toelectronically manage and track its receipt of legal process. OnMarch 16, 2018, CSC generated a "Notice of Service of Process"alerting the appropriate personnel that Nationwide had been servedin the action. The notice states that the summons and complaintwere originally served on Nationwide and describes the method ofservice as "Client Direct." CSC also transmitted to Nationwide acopy of the summons and complaint bearing a handwritten notation"3/14/18 @ 3:20 p.m." However, CSC's notice erroneously reportedthe date of service as March 15, 2018.

On April 16, 2018, the Defendant removed the state court action tothe U.S. District Court for the District of New Jersey, assertingthat federal subject matter jurisdiction exists based on diversityof citizenship and the Class Action Fairness Act of 2005 ("CAFA").

On April 17, 2018, the Plaintiffs moved to remand the action to thestate court. They assert that the Defendant's purported removal ofthe action was untimely under 28 U.S.C. Section 1446(b) because itfiled the notice of removal more than 30 days after personalservice of the summons and complaint was effectuated. TheDefendant does not dispute that its removal of the action wasuntimely, but it seeks to have the Court extend the removal periodpursuant to Rule 6(b) of the Federal Rules of Civil Procedure andthe doctrine of equitable tolling.

Magistrate Judge Wettre finds that the Defendant's delay inremoving admittedly was brief and the Plaintiffs do not argue thatthey will be prejudiced. However, the Defendant's failure to filea timely notice of removal falls squarely on its own shoulders. The Defendant submits that it reasonably relied on the notice fromCSC which contained an erroneous date of service. But CSC warnedthe Defendant that the Notice of Service of Process does notconstitute a legal opinion, and Nationwide itself is responsiblefor interpreting the documents and taking appropriate action.

Moreover, she finds that the Defendant should have and easily couldhave verified the deadline for removal: as highlighted in the CSCNotice, Nationwide was personally served with the summons andcomplaint and could have discussed the date of service with its ownemployee; the complaint it received included a handwritten notationshowing the correct date of service; and the Plaintiff filed anaffidavit of service with the correct date on the state courtdocket on March 29, 2018 (more than two weeks before theDefendant's removal to the Court), of which the Defendant had atleast constructive notice. Given the strict time limit for removalunder Section 1446(b) and considering all the relevantcircumstances, she says the Defendant has not shown excusableneglect.

Finally, the Magistrate finds that CSC's reporting error cannot beconsidered egregious, and the Defendant's unfortunate -- butentirely preventable -- reliance on the date in the CSC Notice ofService of Process is not so extraordinary as to justify equitabletolling of the 30-day window for removal under Section 1446(b).

For the foregoing reasons, Magistrate Judge Wettre recommended thatthe Plaintiffs' motion to remand the action be granted. Theparties are advised that, pursuant to Fed. R. Civ. P. 73(b)(2),they have 14 days after being served with a copy of the Report andRecommendation to serve and file specific written objections to theHon. Susan D. Wigenton, U.S.D.J.

A full-text copy of the Court's Sept. 4, 2018 Report andRecommendation is available at https://is.gd/0Z4EmS fromLeagle.com.

NEBRASKA: Discovery Dispute Order in Sabata Prisoners Suit Issued-----------------------------------------------------------------Magistrate Judge Michael D. Nelson of the U.S. District Court forthe District of Nebraska has issued an order regarding the parties'ongoing discovery disputes in the case, HANNAH SABATA; DYLANCARDEILHAC; JAMES CURTRIGHT; JASON GALLE; RICHARD GRISWOLD; MICHAELGUNTHER; ANGELIC NORRIS; R. P., a minor; ISAAC REEVES; ZOE RENA;and BRANDON SWEETSER; on behalf of themselves and all otherssimilarly situated; Plaintiffs, v. NEBRASKA DEPARTMENT OFCORRECTIONAL SERVICES; SCOTT FRAKES, in his official capacity asDirector of the Nebraska Department of Correctional Services;HARBANS DEOL, in his official capacity as Director of HealthServices of the Nebraska Department of Correctional Services;NEBRASKA BOARD OF PAROLE; JULIE MICEK, in her official capacity asthe Board of Parole Acting Parole Administrator; and DOES, 1 to 20inclusive; Defendants, Case No. 4:17CV3107 (D. Neb.).

The matter is before the Court following a telephone conferenceheld with the counsel for the parties on Aug. 30, 2018. ThePlaintiffs requested the telephone conference to discuss severalongoing discovery disputes. In advance of the telephoneconference, and as ordered by the Court, the counsel for bothparties submitted a number of written documents to the MagistrateJudge, including memorandum arguments and a Joint Discovery DisputeChart.

While there are numerous areas of dispute identified by the partiesin their written submissions, during the telephone conference theparties primarily addressed issues related to the Plaintiffs'request that the Defendants disclose non-party inmate medicalfiles, and whether a protective order is sufficient to address theDefendants' concerns regarding non-party inmates' privacy andHIPAA. Given the nature of this dispute and the potential privacyconcerns at stake, Magistrate Judge Nelson will requiresupplemental briefing on that issue, as well as any other issuesthat the parties are unable to resolve following the additionalmeet and confer(s).

In particular, the parties should provide the Court with anyauthority regarding whether a party can disclose medical records ofnon-party individuals in a putative class action, without theexpress consent of the non-parties. As discussed with the counselduring the telephone conference, upon receipt of the supplementalbriefing, the Magistrate will rule on any outstanding discoveryrequests identified in the parties' Join Discovery Dispute Chart.

In accordance with the matters discussed during the telephoneconference, Magistrate Judge Nelson ordered the parties to meet andconfer to further attempt to resolve their ongoing discoverydisputes. On Sept. 13, 2018, the Plaintiffs will file supplementalbriefing on any outstanding disputes. The Defendants will filetheir supplemental briefing on Sept. 27, 2018. Unless the Court isnotified otherwise, it will then make its rulings on the parties'Joint Discovery Dispute Chart.

The Magistrate terminated the Motion deadline for the documentfiled by non-party Jesse Blackstock. The document requires noCourt ruling and is simply a putative class member's writteninterest in joining the class, if one is certified. He thereforegranted the Defendants' unopposed Motion to Strike. TheDefendants' exhibits at Filing No. 127-2 and Filing No. 127-47 arestricken from their Index of Evidence as they were filed in error. The Magistrate will consider the corrected exhibits at Filing No.146 when ruling on the Defendants' Motion for Partial SummaryJudgment.

He also granted the Defendants' Motion for Extension of Time toserve objections to the Plaintiffs' proposed facility tours, as thePlaintiffs do not object to the extension. He granted thePlaintiffs' Unopposed Motion for Extension of Time to File a Briefin Opposition to the Defendants' Motion for Partial SummaryJudgment. They will have an extension of time to Sept. 7, 2018, tofile their response to the Defendants' Motion for Partial SummaryJudgment. The Defendants are granted an extension to Sept. 21,2018, to file a Reply.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/dXUhGN from Leagle.com.

The parties in the case spent many months negotiating and updatingthe terms of a revised consent decree and have now reachedagreement. The Judge has reviewed the Joint Motion and theagreed-upon Second Revised Modified Settlement Agreement (ConsentDecree), and held a hearing on the matter on Aug. 21, 2018.

The parties have informed the Court that the Second RevisedModified Settlement Agreement (Consent Decree) protects theinterests of the Plaintiff class in the case and brings the currentConsent Decree up to date with the current circumstances andpractices of the New Mexico Human Services Department and withcurrent federal mandates for the Supplemental Nutrition AssistanceProgram and Medicaid. Judge Gonzales has determined that approvalof the Second Revised Modified Settlement Agreement filed on Aug.10, 2018 is in the best interests of the Plaintiff-class and of theparties to the litigation.

Therefore, he granted the Joint Motion to Approve and Adopt RevisedModified Consent Decree. He approved and adopted as the Order theSecond Revised Modified Settlement Agreement, which has now beensigned and re-named by the Court Second Revised Modified SettlementAgreement and Order and separately filed by the Court. The SecondRevised Modified Settlement Agreement and Order became the operantConsent Decree in the case.

The parties, their officers, agents, servants, employees andattorneys, and those persons in active concert with them whoreceive actual notice of the Second Revised Modified SettlementAgreement and Order are restrained from violating its terms,conditions and undertakings.

A full-text copy of the Court's Aug. 21, 2018 Order and ConsentDecree is available at https://is.gd/7oNNqb from Leagle.com.

NEW YORK: Koziol Files Petition for Writ of Certiorari------------------------------------------------------Leon R. Koziol, individually, as natural parent of Child A andChild B, and on behalf of parents similarly situated, Petitioner,vs Janet DiFiore, Chief Judge of the New York Unified Court System;James Tormey, Chief Judge of the Fifth Judicial District; JamesMcClusky, New York Supreme Court Judge; Family Judge; James Eby;Magistrate Natalie Carraway and Kelly Hawse-Koziol Respondents,Case No. 18-278 (U.S., Sept. 5, 2018), is an appeal filed in theSupreme Court of United States from a lower court decision in CaseNo. 18-00101 (N.Y. Sup. Ct., Fourth Judicial Department)

The Petitioner asks the Court to grant his Petition for Writ ofCertiorari to the New York Court of Appeals, a stay of enforcementof orders and proceedings, and alternatively, an order convertingthis petition to one for an extraordinary writ under Rule 20.[BN]

NY STATE UNIVERSITY: Permissive Joinder Bid in Pejovic Granted--------------------------------------------------------------In the case, ISIDORA PEJOVIC, CHAE BEAN KANG, ALBA SALA HUERTA, andCHASSIDY KING, individually and on behalf of all those similarlysituated, and GORDON GRAHAM, Plaintiffs, v. STATE UNIVERSITY OF NEWYORK AT ALBANY, and MARK BENSON, Defendants, Civ. No. 1:17-CV-1092(TJM/DJS) (N.D. N.Y.), Magistrate Judge Daniel J. Stewart of theU.S. District Court for the Northern District of New York grantedthe Plaintiffs' Motion for Permissive Joinder.

The Plaintiffs have moved, pursuant to Federal Rule of CivilProcedure 20(a)(1), for an order allowing joinder of the fouradditional Plaintiffs: Courtney Trudeau, Olivia Schultz, BriannaCicoria, and Danielle Duguid and to amend the Complaintaccordingly. The proposed new Plaintiffs are college rowers, whoare said to be harmed by the intentional discriminatory refusal ofDefendant SUNY Albany to fully accommodate the capabilities andinterests of females, in violation of Title IX. The ProposedAmended Complaint, including a red-lined version, has beensubmitted to the Court, as required by the local rules.

The Defendants oppose the Motion for Permissive Joinder and toAmend, primarily for procedural reasons and, further, upon thegrounds that any such amendment would be futile.

The Class Action Complaint was initially filed on Sept. 29, 2017,by four members and the coach of the former women's varsity tennisteam at the SUNY Albany. The Plaintiffs were notified of SUNY'sintention to eliminate the women's tennis team in late March, 2016. Plaintiff Graham then filed a Title IX complaint with the Officeof Civil Rights ("OCR"), which conducted an investigation and foundSUNY to be in violation of Title IX. Thereafter, it is allegedthat SUNY Albany, without making any admission, entered into aResolution Agreement to resolve the issues identified by the OCR. The present lawsuit then followed, which sought classcertification, monetary damages, and an injunction.

After the Complaint was initially filed, the parties engaged inextensive motion practice, which had the ultimate effect ofnarrowing the claims. In particular, the Plaintiffs filed a Motionfor a Preliminary Injunction, which was denied. On Nov. 29, 2017,the Defendants filed a Rule 12 Motion to Dismiss. The Plaintiffs,in turn, filed a Motion for Summary Judgment.

In a Decision and Order dated July 26, Senior United StatesDistrict Court Judge Thomas J. McAvoy denied the Plaintiffs' Motionfor Summary Judgment, and granted in part and denied in part theDefendants' Rule 12 Motion. The Court dismissed Plaintiff Graham'sTitle IX retaliation claim (but allowed his discrimination claimunder Title IX to proceed); dismissed all the Plaintiffs' 42 U.S.C.Section 1983 claims against Defendant Benson in his officialcapacity; dismissed the Plaintiffs' New York State Human Rights Lawclaims; dismissed the claim for declaratory relief; and dismissedclaims for punitive damages under Title IX. The Court held thatthere were questions of fact as to whether Defendants violatedTitle IX.

A Rule 16 Initial Conference was scheduled in the case on Dec. 28,2017, but at the request of the Defendants it was stayed pendingthe outcome of the Defendants' Motion to Dismiss.

Having reviewed the Proposed Amended Complaint, Magistrate JudgeStewart concludes that the proposal for joinder of the fouradditional Plaintiffs satisfies both requirements of Rule 20(a). He finds that the new Plaintiffs seek a right of recovery arisingout of the same series of occurrences or transactions. He alsofinds that the proposed class to be certified includes all present,prospective, and future female students who are harmed by and wishto end SUNY Albany's sex discrimination in the allocation ofathletic participation opportunities. The proposed new Plaintiffscertainly fall within this sphere, and therefore there are commonquestions of law and fact that will arise in the action.

Most importantly, in the Magistrate's view, is the fact that itwould be a waste of judicial and litigation resources to split upthese two cases, conduct separate and potentially overlappingdiscovery, and to allow multiple motions. Instead, the Court willimpose an aggressive discovery schedule which will allow for atimely resolution of the matter. In the event that it laterappears that a single trial is somehow unwarranted or unwieldy,remedies exist under Rule 20(b).

As to futility, the District Court has already reviewed thePlaintiffs' Title IX claim, and while it found that questions offact predominate which require discovery, at no point did itindicate that the female students' Title IX claim failed to state acause of action. More generally, the Magistrate finds that theproposed Amended Complaint alleges continuing injuries to thosefemale students due to ongoing discriminatory conduct. Therefore,the Defendants' claims of futility based upon standing ortimeliness are unpersuasive.

For these reasons, Magistrate Judge Stewart granted the Plaintiffs'Motion for Permissive Joinder, and to Amend. The Plaintiffs are tofile an amended complaint within 10 days of the Decision and Order. For the sake of clarity, the Amended Complaint to be filed by thePlaintiffs will not contain any of the claims, or demand forpunitive damages, that were dismissed by Judge McAvoy in his July26, 2018 Decision and Order.

Pursuant to FED R. CIV. P. 72(a), the parties have 14 days withinwhich to file written objections to the foregoing order. Suchobjections will be filed with the Clerk of the Court. Asspecifically noted in Rule 72(a) a party may not assign as error adefect in the order not timely objected to.

A full-text copy of the Court's Sept. 5, 2018 Decision and Order isavailable at https://is.gd/PtdTEY from Leagle.com.

Isidora Pejovic, individually and on behalf of all those similarlysituated, Chae Bean Kang, individually and on behalf of all thosesimilarly situated, Alba Sala Huerta, individually and on behalf ofall those similarly situated, Chassidy King, individually and onbehalf of all those similarly situated & Gordon Graham, Plaintiffs,represented by Bernays T. Barclay -- buz.barclay@rimonlaw.com --Rimon, P.C.

State University of New York at Albany & Mark Benson, Defendants,represented by Mark G. Mitchell, New York State Attorney General.

OPKO HEALTH: Rosen Law Firm Files Securities Class Action---------------------------------------------------------Rosen Law Firm, a global investor rights law firm, on Sept. 12disclosed that it has filed a class action lawsuit on behalf ofpurchasers of the securities of OPKO Health, Inc. (NASDAQ:OPK) fromSeptember 26, 2013 through September 7, 2018, inclusive (the "ClassPeriod"). The lawsuit seeks to recover damages for OPKO investorsunder the federal securities laws.

NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASSIS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAINONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN ANABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'SABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENTUPON SERVING AS LEAD PLAINTIFF.

According to the lawsuit, defendants made false and/or misleadingstatements and/or failed to disclose that: (1) OPKO and itsChairman and Chief Executive Officer, Phillip Frost, were engagedin a pump-and-dump scheme with several other individuals andcompanies in their investments in several penny stocks; (2) thisillicit scheme would result in governmental scrutiny including fromthe SEC; and (3) as a result, defendants' statements about OPKO'sbusiness, operations and prospects were materially false andmisleading and/or lacked a reasonable basis at all relevant times.When the true details entered the market, the lawsuit claims thatinvestors suffered damages.

A class action lawsuit has already been filed. If you wish to serveas lead plaintiff, you must move the Court no later than November13, 2018. A lead plaintiff is a representative party acting onbehalf of other class members in directing the litigation. If youwish to join the litigation, go tohttp://www.rosenlegal.com/cases-1412.htmlor to discuss your rights or interests regarding this class action, please contact PhillipKim or Zachary Halper of Rosen Law Firm toll free at 866-767-3653or via email at pkim@rosenlegal.com or zhalper@rosenlegal.com.

Follow us for updates on LinkedIn:https://www.linkedin.com/company/the-rosen-law-firm or on Twitter:https://twitter.com/rosen—firm.

Rosen Law Firm -- http://www.rosenlegal.com-- represents investors throughout the globe, concentrating its practice in securitiesclass actions and shareholder derivative litigation. Rosen Law Firmwas Ranked No. 1 by ISS Securities Class Action Services for numberof securities class action settlements in 2017. The firm has beenranked in the top 3 each year since 2013. [GN]

P.F. CHANG'S: Belt et al. Suit Moved to E.D. Pennsylvania---------------------------------------------------------The employment-related class action lawsuit titled STEVEN BELT;LAURA COUNCIL; and JAMES HARRIS, individually and on behalf of allothers similarly situated, Plaintiff v. P.F. CHANG'S CHINA BISTRO,INC., Defendant, Case No. 1:18-cv-02126 (D. Md., July 11, 2018),was removed from the U.S. District Court for the District ofMaryland, to the U.S. District Court for the Eastern District ofPennsylvania on September 6, 2018. The Eastern District ofPennsylvania assigned Case No. 2:18-cv-03831-AB (E.D. Pa., Sept. 6,2018) to the proceeding. The Case is assigned to the Hon. Anita B.Brody.

P.F. Chang's China Bistro, Inc. is engaged in the sale of food andbeverage items. The Company is headquartered in Scottsdale,Arizona. [BN]

PEAK FORECLOSURE: Court Dismisses Pewitt Suit---------------------------------------------In the case, JAMES B. PEWITT and ELIZABETH C. PEWITT, as a marriedcouple and on behalf of others similarly situated, Plaintiffs, v.PEAK FORECLOSURE SERVICES OF WASHINGTON, INC., a Washingtoncorporation; PEAK FORECLOSURE SERVICES, INC., a Californiacorporation; and BANK OF NEW YORK MELLON CORPORATION, a Delawarecorporation, Defendants, Case No: 2:15-CV-173-RMP (E.D. Wash.),Judge Rosanna Malouf Peterson of the U.S. District Court for theEastern District of Washington (i) granted the parties' StipulatedMotion for Dismissal; (ii) denied as moot all pending motions; and(iii) struck all scheduled Court hearings, if any.

The Judge dismissed without prejudice the Plaintiff's Complaint,with respect to the class action claims, and with prejudice withrespect to the Plaintiff's individual claims, and without costs toany party. He directed the District Court Clerk to enter theOrder, provide copies to the counsel, and close the case.

A full-text copy of the Court's Sept. 4, 2018 Order is available athttps://is.gd/r08Wmw from Leagle.com.

Bank of New York Mellon, f/k/a The Bank of New York, as Trustee forthe Benefit of the Certificateholders of the CWABS, Inc.Asset-Backed Certificates, Series 2006-SD4, Defendant, representedby Donald Gene Grant, Donald G Grant PS.

PFC Furniture Industries, Inc. distributes home furniture to retailstores. The company offers living room, bedroom, dining room,mattress sets, and kid’s bedroom furniture. It also sellsproducts online. The company was founded in 2008 and isheadquartered in Richardson, Texas. [BN]

To: All persons or entities who purchased or otherwise acquiredsecurities of Philip Morris International, Inc. ("Philip Morris")(NYSE: PM) between February 8, 2018 and April 18, 2018. You arehereby notified that a securities class action lawsuit has beencommenced in the United States District Court for the SouthernDistrict of New York. To get more information go to:

or contact Joseph E. Levi, Esq. either via email atjlevi@levikorsinsky.com or by telephone at (212) 363-7500,toll-free: (877) 363-5972. There is no cost or obligation to you.

The complaint alleges that throughout the class period Defendantsissued materially false and/or misleading statements and/or failedto disclose that: (1) Philip Morris was experiencing a fasterdecline in overall cigarette and e-cigarette (or "heated tobacco")sales volumes during the first quarter of 2018 than investors hadbeen led to believe; (2) Philip Morris' much-lauded salesinitiatives had stalled; (3) Philip Morris was experiencing adversesales headwinds in key markets; and (4) as a result of theforegoing, defendants' statements about Philip Morris' business,operations, and prospects, were materially false and/or misleadingand/or lacked a reasonable basis.

If you suffered a loss in Philip Morris you have until November 5,2018 to request that the Court appoint you as lead plaintiff. Yourability to share in any recovery doesn't require that you serve asa lead plaintiff.

Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, California, Connecticut, and Washington D.C.The firm's attorneys have extensive expertise and experiencerepresenting investors in securities litigation, and have recoveredhundreds of millions of dollars for aggrieved shareholders. [GN]

The Defendants operate internet lending websites offeringshort-term loans to consumers. The Plaintiffs allege that theDefendants offered loans to them in amounts ranging from $300 to$3,000, charging interest rates ranging from 118% to 448%. ThePlaintiffs bring the suit on behalf of themselves and allindividuals similarly situated, alleging that the Defendants'lending enterprises violate state and federal lending laws.

Specifically, they allege that the Defendants structured theirbusinesses to benefit from the protections of tribal sovereignimmunity even though they do not constitute tribal entities. TheDefendants did so, the Plaintiffs contend, in order to evade stateand federal lending laws. The Plaintiffs contend that theDefendants' fraudulent posture as tribal entities eradicates anypotential claim to the protection of tribal sovereign immunity.

The Plaintiffs filed a five-count putative class action Complaintagainst the Defendants alleging various state and federalviolations, including two civil Racketeer Influenced and CorruptOrganizations Act ("RICO") claims, associated with an illegallyusurious loan enterprise.

Plain Green filed a Motion to Dismiss without Leave to Amend or, inthe Alternative, to Compel Arbitration. Great Plains filed threeseparate motions: (1) a Motion to Dismiss for Lack of Jurisdiction;(2) a Motion to Compel Arbitration; and (3) a Motion to TransferCase. The Defendants each moved to dismiss for lack of subjectmatter jurisdiction under Rule 12(b)(1), claiming sovereignimmunity.

The Plaintiffs filed a Motion to Permit Jurisdictional Discovery,seeking limited jurisdictional discovery on the issue of theDefendants' claim of sovereign immunity. The Defendants eachopposed the Motion for Discovery.

On July 25, 2018, the Court granted the Plaintiffs' Motion forDiscovery and dismissed without prejudice the Defendants' Motionsto Dismiss based on sovereign immunity and the Defendants' Motionsto Compel Arbitration. It concluded that it could not establishjurisdiction on the record before it and found that the Plaintiffs'specific and substantive allegations against the Defendants justifyjurisdictional discovery to determine whether Defendants share inthe Tribes' sovereign immunity.

The Court dismissed the Defendants' Motions to Dismiss based onsovereign immunity because the jurisdictional discovery wouldaffect parties' briefing on that issue. Because a finding that theDefendants had tribal sovereign immunity would deprive the Court ofjurisdiction to compel arbitration, the Court also denied theMotions to Compel Arbitration for procedural reasons, stating thatthe jurisdictional discovery will likely affect the parties'briefings.

On Aug. 3, 2018, Great Plains filed Great Plains' Appeal. OnAug.6, 2018, Plain Green filed Plain Green's Appeal. The Appealsinvoked 9 U.S.C. Section 16(a)(1)(B)6 as a basis for interlocutoryappeal. The Defendants contended that the Appeals automaticallystayed the action pending resolution by the United States Court ofAppeals for the Fourth Circuit.

On Aug. 17, 2018, the Court ordered briefing on the effect, if any,of the Notices of Appeal on the case and the Aug. 30, 2018deadline. All parties submitted briefing. On Aug. 24, 2018, theCourt ordered additional briefing on the applicability of 9 U.S.C.Section 16(a)(1)(B) to the current proceeding. All parties briefedthe issue.

The Defendants have invoked 9 U.S.C. Section 16(a)(1)(B) to appealthe Court's denial without prejudice of their Motions to CompelArbitration. Judge Lauck explains that the ability to invoke thisprovision relies on 9 U.S.C. Section 4. Section 4 allows a partyto petition a district court to compel arbitration, pursuant to awritten arbitration agreement, when the district court, save forsuch agreement, would have jurisdiction under title 28. At thesame time it denied the Motions to Compel Arbitration, the Courtdenied the Motions to Dismiss based on sovereign immunity becauseit could not determine whether it had jurisdiction.

Until the Court resolves this threshold jurisdictional issue, theJudge holds that the Defendants cannot invoke Section 16. Theirarguments to the contrary are wholly without merit. BecauseSection 16 does not apply, none of the legal points are arguable ontheir merits. The inapplicability of Section 16 requires the Judgeto deem the Defendants' Appeals frivolous.

For the foregoing reasons, Judge Lauck certified the Defendants'Appeals as frivolous. Having made such a finding, she ordered theparties to proceed with the Court's July 25, 2018 Order forjurisdictional discovery. However, she extended the deadline forparties to agree upon a plan for limited jurisdictional discoveryand submit a proposed order to the Court to Sept. 11, 2018. Otherdeadlines will similarly be advanced. Jurisdictional discoverywill be completed by Oct. 19, 2018. The Defendants will file ananswer or other responsive pleading by close of business Oct. 31,2018. An appropriate Order will issue.

A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinion isavailable at https://is.gd/OCJxkt from Leagle.com.

The matter is before the Court upon a Motion to Dismiss WithoutPrejudice filed by the Mr. Brent. PreCheck has filed a Responsein Opposition. Defendants Columbia Medical Group - The FristClinic and HCA Human Resources have also filed a Response inOpposition.

Mr. Brent filed his Motion to Dismiss in conjunction with hisMotion to Modify Scheduling Order, stating that should the Courtdetermine that Mr. Brent's motion in that regard should be denied,he respectfully requests, in the alternative, leave to dismiss thecase without prejudice. Mr. Brent specifically incorporates hisarguments associated with his Motion to Modify Scheduling Orderregarding procedural delays that he asserts have been caused byothers and lack of prejudice to opposing parties.

PreCheck responds that dismissal without prejudice would beinappropriate at this time, citing the factors laid out by theCourt of Appeals for the Sixth Circuit in Grover v. Eli Lilly & Co. If dismissal without prejudice is granted, PreCheck requests thatthe Court impose conditions upon that dismissal.

The Frist Clinic and HCA HR respond by reiterating their argumentsin opposition to Mr. Brent's Motion to Modify Scheduling Order,specifically, that conduct by other Parties and their counsel arenot to blame for Mr. Brent's failure to file a motion to certify aclass action. Regarding the instant Motion to Dismiss, theseDefendants simply note that it is within the discretion of theCourt under controlling law.

Reviewing the Grover factors in light of the Court's recent Order,Magistrate Judge Frensley finds that allowing Mr. Brent to dismisswithout prejudice and re-file the action would result in visitingupon the Defendants the unfair treatment against which Rule41(a)(2) is supposed to protect. He has previously discussed theunreasonable delay and lack of diligence on the part of Mr. Brentin prosecuting the action, and his explanation for the need to takea dismissal is insufficient in that its only purpose is to allowMr. Brent to circumvent the Court's ruling with respect to hisMotion to Modify Scheduling Order. Additionally, as PreCheck'sMotion to Dismiss is pending, PreCheck would suffer clear legalprejudice if Mr. Brent's voluntary dismissal is granted.

For the foregoing reasons, the Magistrate recommended the denial ofMr. Brent's Motion to Dismiss Without Prejudice. Under Rule 72(b)of the Federal Rules of Civil Procedure, any party has 14 daysafter service of the Report and Recommendation in which to file anywritten objections to the Recommendation with the District Court. Any party opposing said objections will have 14 days after serviceof any objections filed to the Report in which to file any responseto said objections. Failure to file specific objections within 14days of service of the Report and Recommendation can constitute awaiver of further appeal of the Recommendation.

A full-text copy of the Court's Sept. 5, 2018 Report &Recommendation is available at https://is.gd/Z7MnPe fromLeagle.com.

According to the complaint, on January 23, 2018, the Companydisclosed lower gold production for the Brucejack Mine thanpreviously projected, and also delayed achievement of steady stategold production and operation of the grade control program. On thisnews, the Company's share price fell $2.86 per share, or over 26%,to close at $7.93 per share on January 23, 2018, on unusually heavytrading volume.

On September 6, 2018, Viceroy Research published a report entitled"Pretium Resources – digging up dirt," alleging, among otherthings, that the Company's "reported grades and reserves aresignificantly inflated, a much greater amount of waste is beingdumped into local lakes, and more explosives are being utilized."The report further alleged that "management is scrambling to findconsistent, high-grade ore to maintain the charade that its debtand equity are viable." On this news, the Company's share pricefell $0.77 per share, or approximately 10%, to close at $6.94 pershare on September 6, 2018, on unusually heavy trading volume.

The Defendants made materially false and misleading statements, aswell as failed to disclose material adverse facts about theCompany's business, operations, and prospects. Specifically, theDefendants failed to disclose to investors: (1) that the BrucejackProject is not a high-grade, high-output mine; and (2) that, as aresult of the foregoing, the Defendants' positive statements aboutthe Company's business, operations, and prospects were materiallyfalse and misleading and lacked a reasonable basis.

As a result of Defendants' wrongful acts and omissions, and theprecipitous decline in the market value of the Company'ssecurities, Plaintiff and other Class members have sufferedsignificant losses and damages.

According to the complaint, the Defendant offers a payment plancalled Easy-Pay to its customers in the U.S., U.K., Germany andItaly (known as Q-Pay in Germany, and Italy). Easy Pay allows theDefendants' customers to pay for certain merchandise in two or moremonthly installments. When Easy-Pay is elected by the customer, thefirst installment is billed to the customer's credit card uponshipment and an Easy-Pay receivable is established to account forthe collection of subsequent installments.

The Defendants failed to disclose that: (1) the Company wasaggressively loosening the credit standards of its Easy-Pay programto attract a large group of new customers; (2) the Company's strongsales growth was due to this loose credit policy; (3) accountsreceivable associated with this new group of customers posed a highrisk of write-off; and (4) as a result of the foregoing, theCompany's positive statements about its business, operations, andprospects lacked a reasonable basis.

The slowdown in sales began to emerge on August 5, 2016, when theCompany issued a press release announcing financial results for thesecond quarter ended June 30, 2016, in which the Company disclosed"significant headwinds" and sales declines as compared to priorperiods.

On news of sales slowdown, the Company's stock price fell $5.69 pershare, or 21.63 percent, to close on August 5, 2016 at $20.61 pershare. Then, on September 8, 2016, during a Goldman Sachs GlobalRetailing Conference in New York City, the Company finallydisclosed the true impact of the Easy Pay issues, revealing toinvestors that it expects to see "higher default rates" associatedwith these sales. Moreover, the Company warned that this negativetrend, while improved, would still, continue to impact itsbusiness. On this news, the Company's stock fell price $1.87 pershare, or 8.71 percent, to close on September 8, 2016 at $19.59 pershare.

As a result of Defendants' wrongful acts and omissions, and theprecipitous decline in the market value of the Company'ssecurities, Plaintiff and other Class members have sufferedsignificant losses and damages.

Defendant is an insurance company that specializes in personal andbusiness insurance across Texas where Contreras worked as a salarypaid insurance agent. She claims to have not been compensated atthe overtime premium rate for all hours worked in excess of 40hours per week. Defendant would also routinely deduct $70.00 perday for each day of work missed due to illness regardless ofwhether the employee was an hourly or salaried employee, notes thecomplaint.

Hinkle is a resident of Delbarton, West Virginia. The Defendant, aGeorgia limited liability company doing business in West Virginia,offered Guaranteed Auto Protection ("GAP") insurance to vehiclepurchasers in West Virginia. In the event of an accident resultingin the total loss of a vehicle, GAP insurance is alleged by Hinkleto cover any "gap" between the purchaser's outstanding balance owedon the vehicle and the amount paid by the purchaser's primaryinsurer.

In July 2006, Hinkle entered into a "Retail Installment Contractand Security Agreement" for the purchase of a vehicle. As part ofthat transaction, Hinkle also purchased GAP insurance fromSafe-Guard by signing a "Gap Contract Insurance Policy' or'Deficiency Waiver Addendum.'" The Security Agreement and theInsurance Policy, show that Hinkle paid $495 upfront for the GAPinsurance, which was the only payment due to Safe-Guard for thepurchase of the policy.

On June 1, 2011, Hinkle was involved in an automobile accidentresulting in the total loss of her vehicle. At the time, Hinkle'soutstanding balance on the vehicle was $11,983.81. After Hinkle'sprimary insurer paid the vehicle's cash value, Hinkle still owed a"gap" of $4,698.81. By letter of July 21, 2011, Safe-Guard deniedHinkle's claim under the GAP policy and did not pay the deficiency,stating that Hinkle lacked coverage because of inconsistencies inher payment history, such as late payments, that caused the loan tobe re-amortized. In effect, Safe-Guard asserts that had paymentsbeen timely made, the amount owing at the time of the accidentwould have been around $5,000, which is less than the $7,000insurance accident recovery, leaving no gap to be covered by theSafe-Guard policy.

Hinkle initiated the action on July 20, 2012, in the Circuit Courtof Mingo County. In the state court, Safe-Guard sought a writ ofprohibition from the Supreme Court of Appeals of West Virginia toprevent enforcement of an order finding that the GAP policySafe-Guard sold to Hinkle was insurance, State ex rel. Safe-GuardProds. Int'l, LLC v. Thompson. In that case, on March 11, 2015,the Supreme Court of Appeals found as a matter of first impressionthat Safe-Guard's GAP policy is insurance under the laws of WestVirginia.

Following that ruling, on May 28, 2015, Hinkle moved to amend hercomplaint to include class claims against Safe-Guard on behalf ofall purchasers of GAP insurance in West Virginia. In the amendedcomplaint, she claims that Safe-Guard sold GAP insurance without alicense in violation of West Virginia Code section 33-3-1. Hinklealleges that this unlawful sale of insurance constituted aviolation of various provisions of the WVCCPA's debt collectionprovisions of article 2 and general consumer protections of article6.

After Hinkle moved to amend her complaint to add class allegations,Safe-Guard removed the action to the Court on Oct. 9, 2015,pursuant to the Class Action Fairness Act. On Nov. 23, 2015,Safe-Guard filed a motion for partial dismissal, arguing that itsalleged conduct falls outside the protections of the West VirginiaConsumer Credit and Protection Act ("WVCCPA") as a matter of law.

On July 19, 2016, the Court entered a memorandum opinion and orderdismissing Hinkle's claims under the debt collection provisions ofthe WVCCPA, West Virginia Code sections 46A-2-122 to 129a.

Pending is Hinkle's motion, filed July 20, 2016, forreconsideration of the Court's memorandum opinion and order of July19, 2016. Safe-Guard seeks wholesale dismissal of Hinkle's WVCCPAclaims, arguing that the WVCCPA does not apply to the sale ofinsurance. Safe-Guard references West Virginia Code section46A-1-105(a)(2), which provides that the WVCCPA does not apply tothe sale of insurance by an insurer, except as otherwise providedin this chapter. It also contends that Hinkle's WVCCPA claims arepreempted by West Virginia's insurance laws.

Hinkle highlights the caveat in section 46A-1-105(a)(2), except asotherwise provided, and contends that various provisions of theWVCCPA provide for the coverage of insurance. First, Hinkle arguesthat the unlicensed sale of insurance is covered by the WVCCPA'sdebt collection provisions. Second, Hinkle insists that thestatute's general consumer protections apply to insurance sales. Third, she argues that the WVCCPA allows for recovery forviolations of other laws, including the insurance laws.

Judge Copenhaver dismissed Hinkle's claim under West Virginia Codesection 46A-2-127. He finds that the plain language of the statuteis unambiguous and that, even liberally construed, Safe-Guard isnot a "debt collector" within the protections of the WVCCPA's debtcollection provisions. The contract was accepted and the sum of$495 was earmarked then for payment to Safe-Guard through financingwhen Hinkle (or Hinkle's then-spouse on her behalf) signed theSecurity Agreement and the Insurance Policy. Hinkle's agreementwith Safe-Guard was, as she concedes, a point of sale exchange. Accordingly, because she had no duty to pay Safe-Guard money as aresult of a prior purchase of GAP insurance, Safe-Guard's sale ofGAP insurance is not a "claim" under the WVCCPA's debt collectionprovisions.

The Judge reiterates the Court's prior decision that the sale ofinsurance is not encompassed within the WVCCPA's general consumerprotections of article six. As noted in the court's prior order,article six's exclusions supplement, rather than supplant, theWVCCPA's generally-applicable exclusions in section46A-1-105(a)(2). This is underscored by the subject matter ofarticle six's exclusions, which merely shield news media fromliability for innocently publishing "false, misleading ordeceptive" advertisements. Hinkle also does not point to anythingabout article six in the court's previous order that warrantsreconsideration under Rule 54(b). Instead, she simply restates herargument that Safe-Guard's sale of insurance falls within thepurview of article six because "services" is defined by the WVCCPAto include "insurance."

Finally, because the Judge dismissed Hinkle's debt collection andgeneral consumer protection claims, he holds he needs not addressSafe-Guard's preemption argument or Hinkle's contention that theWVCCPA allows for recovery for violations of West Virginia'sinsurance laws.

Accordingly, Judge Copenhaver granted both (i) Hinkle's motion forreconsideration of the Court's memorandum opinion and order of July19, 2016; and (ii) Safe-Guard's motion for partial dismissal, whichhe construes as limited to the issues adjudicated. The Judgedirected the Clerk to transmit copies of his Memorandum Opinion andOrder to all the counsel of record and to any unrepresentedparties.

A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinionand Order is available at https://is.gd/UW0mam from Leagle.com.

SAINT JOHN: Seeks to Block Estabrooks Sexual Abuse Class Action---------------------------------------------------------------Philip Drost and Connell Smith, writing for CBC News, report thatthe City of Saint John is turning to the Supreme Court of Canada inan attempt to block a class action lawsuit on behalf of adults whosay they were sexually abused as minors by the late police officerKenneth Estabrooks.

The class action suit was launched by Robert Hayes and othervictims and has been certified by New Brunswick's Court of Queen'sBench.

Saint John challenged that certification in the province's Court ofAppeal and lost. The city is now asking the Supreme Court for leaveto appeal that decision.

City councillors voted unanimously on Sept. 10 to seek leave toappeal the certification.

"From a pure legal perspective the advice has been that that's theright move to make from a legal perspective and council has agreedwith that," Saint John Mayor Don Darling said on Sept. 10.

Alleged abuseIn 2017, the city launched an appeal on four legal issues: duty ofcare, vicarious liability, punitive damages and fiduciary duty. Theonly one of those that didn't stand in the August decision was theappeal on the breach of fiduciary duty.

Mr. Estabrooks was a city police officer between 1953 and 1975,when he was fired after admissions to superiors he had sexuallyabused at least two boys.

After that, he was transferred to the city works department andretired from that in 1983.

In 2013, a private investigator hired by the city said that as manyas 263 youths may have been sexually abused by Mr. Estabrooks overthree decades.

In 1999 Mr. Estabrooks was convicted of four charges of indecentassault and sentenced to six years in prison. He died in 2005.[GN]

SALOV NORTH AMERICA: Olive Oil Class Action Settlement Okayed-------------------------------------------------------------Metropolitan News Company reports that the Ninth U.S. Circuit Courtof Appeals on Sept. 11 rejected a class member's challenge to thesettlement of an action under which purchasers of Flippo Berioolive oil -- which proclaimed on their labels, "Imported FromItaly" -- will receive, subject to provisos, 50 cents for everybottle they purchased between May 23, 2010 and June 30, 2015.

The settlement came after two years of litigation and theproduction of about 30,000 pages of documents. According to thecomplaint filed by consumer Rohini Kumar on May 23, 2014 againstthe importer of the olive oil, Salov North America Corp andItalfoods, Inc.:

"[B]y stating 'IMPORTED FROM ITALY' Defendants lead consumers tobelieve that these Products are made from Italian olives or. at aminimum, are pressed in Italy. This is false and deceptive. Infact, none of the Mock Italian Products are made from olives grownin Italy. Nor are they pressed in Italy. Rather, the Mock ItalianProducts are made from oil pressed in many different countries,trucked or shipped to Italy, mixed with oil from other countries,bottled and then exported."

Salov's defense was that "imported" meant "shipped out of."

Settlement Terms

Under the settlement, the defendant agreed to pay a minimum of $2to any household where members bought from one to four bottlesduring the specified period, up to $5 per household for up to 10purchases, with no proof of purchase necessary. Proof of paymentwas required for those claiming 50 cents per bottle where more than10 bottles were bought.

The period for filing claims ended last year.

Injunctive relief was also part of the settlement. The stipulationprovides:

"Defendant agrees not to use the phrases 'Imported from Italy,''Made in Italy,' 'Product of Italy,' or any other phrase on thelabel of a Product sold in the United States suggesting that oliveoils in a Product originate from olives grown in Italy, and insteadto use the designation 'Imported' on the front panel, until atleast three years after the Effective Date, unless the Product solabeled is composed entirely of oil extracted in Italy from olivesgrown in Italy. Defendant is not required to remove or recall anyProduct that may remain in the marketplace that bears thedesignation 'Imported from Italy.' "

Memorandum Decision

The Sept. 11 Ninth Circuit decision arises from the protest of anon-participating class member, Theodore Frank, that the settlementwas inadequate. In a memorandum decision, approval of thesettlement by District Court Judge Yvonne Gonzalez Rogers of theNorthern District of California was affirmed.

The opinion says:

"The district court considered the strength of the plaintiffs' caseand the risk involved with further litigation, noting that SalovNorth America Corp. had a legitimate defense and that this 'was[not] the strongest case [she] ha[d] ever seen.' The district courtalso noted that proceeding to trial would be costly given the needfor expert testimony, and that the best potential outcome at trialwould not exceed the recovery per bottle offered by the settlement.Further, the court recognized that the litigation was 'hard fought'and that class counsel reached an 'excellent result' for the class,including achieving the class's non-monetary goal of 'get[ting] thedefendants to improve their practices.' Because there is no 'strongshowing that the district court's decision was a clear abuse ofdiscretion,' we affirm."

SAN FRANCISCO, CA: Judgment on Pleadings Bid in Lil' Man Suit OK'd------------------------------------------------------------------In the case, LIL' MAN IN THE BOAT, INC., Plaintiff, v. CITY ANDCOUNTY OF SAN FRANCISCO, et al., Defendants, Case No.17-cv-00904-JST (N.D. Cal.), Judge Jon S. Tigar of the U.S.District Court for the Northern District of California granted theDefendants' motion for judgment on the pleadings.

Lil' Man owns and operates a licensed commercial charter MotorVessel 'Just Dreaming' that provides transportation and hospitalityservices on the San Francisco Bay both for locals and visitors fromall over the globe. Lil' Man filed the case because San Franciscochanged the terms under which it allowed boats to dock at SouthBeach Harbor.

For the years 2013 through 2015, the landing fee for commercialvessels such as Just Dreaming was $160 per hour. In 2016, theDefendants introduced a Landing Agreement which required commercialvessel operators to enter a written landing rights agreement withthe Defendant. The agreement increased landing fees to $220 forcommercial vessel operators, gave the Defendants the right toincrease the required fees at any time, and imposed a supplemental7% Gross Revenue Fee.

In June 2016, the Defendants ordered the Plaintiff and otherssimilarly situated to either sign the 2016 Agreement or cease allcommercial interstate operations as of Oct. 1, 2016. The Plaintiffpaid the 7% gross revenue fee on two occasions in order to continueits previously reserved operations.

On March 30, 2017, the Defendants moved to dismiss the complaint inits entirety. The Court denied the motion to dismiss with respectto the Tonnage Clause, Dormant Commerce Clause, and Rivers &Harbors Act, and granted it with respect to the Bane Act claim. Itallowed the derivative claims for declaratory relief, injunctiverelief, and restitution to survive.

The Plaintiff filed its First Amended Complaint on Aug. 14, 2017. Its FAC makes three claims relating to the 2016 Agreement. First,the Plaintiff brings a claim for violation of 42 U.S.C. Section1983 claim based on violations of the Tonnage Clause, the CommerceClause, the First Amendment, and the Rivers & Harbors Act. Second,the Plaintiff brings a claim entitled "Declaratory and InjunctiveRelief," although the body of the complaint seeks declaratoryrelief only. And third, it brings a claim for unjust enrichment.

The Plaintiff's FAC also brings a putative class action. It seeksto represent the following four classes:

(a) All persons and entities licensed by the USCG forcommercial passenger service who, at any time during the four yearspreceding the filing of the action to the date of ClassCertification have landed at, moored, or caused passengers totraverse South Beach Harbor and incurred or paid fees to Defendantsfor that opportunity;

(b) All persons and entities who, at any time during the fouryears preceding the filing of the action to the date of ClassCertification, were licensed commercial passenger vessel operatorswho were subject to the Defendants' demand that they execute and/orcomply with the terms, payments, and conditions of the 2016 LandingAgreement in order to use South Beach Harbor;

(c) All persons and entities who, at any time during the fouryears preceding the filing of the action to the date of ClassCertification, were licensed commercial passenger vessel operatorsand signed the 2016 Landing Agreement and complied with its terms;

(d) All persons or entities who, for the past four years tothe present, have been licensed for sale and consumption ofalcoholic beverages and who were or are subject to the Defendants'demand for payment of a percentage of revenues or profits.

The Defendants filed the motion for judgment on the pleadings onFeb. 22, 2018. They argue that the following claims fail as amatter of law: (1) the Plaintiff's claims for unjust enrichment anddeclaratory relief to the extent they each rely on CaliforniaBusiness and Professions Code section 23300; and (2) thePlaintiffs' claim for violation of the First Amendment right toaccess the courts.

Both the Plaintiff and the Defendants ask the Court to take noticeof legislative history documents from the California legislaturerelating to California Business and Professions Code section23300.1. Judge Tigar concludes that the documents included by theparties are proper subjects of judicial notice and grants theirrespective requests.

The Judge finds that the Plaintiff's claims for unjust enrichmentand declaratory relief based on Section 23300 fail as a matter oflaw, and the Defendants' motion for judgment on these claims isgranted. The legislative history of section 23300.1 suggests thata revenue-sharing agreement does not violate the statute. Thathistory shows that the statute's author intended to clarify thatthe mere existence of revenue-sharing agreements does notconstitute the exercising of license privileges. Thus, to theextent the language and legislative history of section 23300.1 canbe read to favor either side in the case, they favor theDefendants.

The Judge also finds that there is no freestanding coercive waiverclaim. The Plaintiff must actually sign the waiver, then see ifthe Defendants assert it. At that point, the Plaintiff can disputeits validity. But Lil' Man may not bring a standalone claim forcoercive waiver, because the law does not recognize such a claim. Accordingly, the Judge grants the Defendants' motion for judgmenton the pleadings with respect to the Plaintiff's access to thecourts claim.

For the aforementioned reasons, Judge Tigar granted with prejudicethe Defendants' motion for judgment on the pleadings as to thePlaintiff's First Amendment, and section 23300 unjust enrichmentand declaratory relief claims. He set a further case managementconference on Nov. 7, 2018 at 2:00 p.m. An updated joint casemanagement statement is due Oct. 31, 2018.

A full-text copy of the Court's Sept. 4, 2018 Order is available athttps://is.gd/X1ZasM from Leagle.com.

SCHNEIDER NATIONAL: Seeks Dismissal of Wage-Fixing Class Action---------------------------------------------------------------Matt Bernardini, writing for Law360, reports that SchneiderNational Inc. has asked a California federal court to toss aproposed class action brought by a group of truck drivers whoaccused the company of conspiring to restrain competition. [GN]

A high-profile Seattle law firm — a founding member hasrepresented UW football coach Rick Neuheisel and former Mayor EdMurray -- is investigating a class action lawsuit against SeattleCity Light on behalf of customers who feel they've receivederroneously high bills.

"It is alleged that Seattle City Light overcharges its customersfor electricity by billing customers for incorrect estimates oftheir electricity usage rather than billing customers for theiractual electricity usage," says a call for customers on the websiteof McNaul Ebel Nawrot and Hellgren.

Specifically, the firm points to reports in Crosscut and theSeattle Times laying out issues the department has experienced withits new (and over budget) billing system, which has occasionallycreated high bills based on estimated meter reads.

As of Sept. 12, no lawsuit had been served to the City, accordingto Dan Nolte, spokesperson for the City Attorney's Office.

The call for aggrieved customers was first posted in late June ofthis year.

In an unrelated announcement on Sept. 11, Seattle CityCouncilmember Teresa Mosqueda is ordering an audit of the utilitydepartment's billing practices -- be they related to the new systemor otherwise. Ms. Mosqueda said in a statement that her office hadheard from customers concerned about their bills.

The audit will be conducted by the Seattle City Auditor, and willlook into how City Light prevents erroneous bills, checks theaccuracy of bills, communicates with customers, resolvescomplaints, accommodates payment plans and reimburses customerswho've been overcharged.

"Ensuring that City Light has clear policies that customers andstaff alike understand is important to delivering high-qualityservice," said Ms. Mosqueda. "My commitment is not only to ensurethose policies are clearly articulated and followed, but that weare prepared to nimbly respond to constituent concerns aboutbilling, and are inward-looking, identifying problematic policiesand remedying them to best benefit our communities."

The issues with city's new $109 million billing system go back tobefore it even rolled out —more than $40 million over budget.

But when it got up and running, it did not function as intended.City Light employees are supposed to sign off on meter reads filedinto the system. But the department fell behind and some readingswere never approved.

The more automated system then began rejecting legitimate butunapproved readings in favor of estimates, which were sometimeshigher. "The machine thinks it's correcting, but it's notcorrecting well," Joel Vancil, a call taker in the city's CustomerContact Center, told Crosscut in February.

Additionally, the department fell behind on account transfers andmove-in setups, meaning some customers' first bills were backloggedand, when eventually produced, very large, even if technicallycorrect.

In a statement, City Light spokesperson Scott Thomsen declined tocomment on the potential litigation. But he did say the departmentwould work with the auditor to support the review and offered someexplanation.

"There have been times when locks have been changed on meter roomsin multifamily buildings and our meter readers have not been ableto access them; meter readers were not able to complete a route;gates were locked; or dogs were left out in the yard," he said."Situations like that will force an estimate for the reading. Oncewe do get an actual read, it will show whether our estimate was lowor high. If we were too high, the next bill could be very small orhave a credit. If our estimate was low, the next bill will accountfor all the electricity that was used but not paid for in previousbilling cycles as well the current billing cycle's usage."

Thomsen said the rollout of a new network of "smart meters" willimprove the department's ability to deliver timely and accuratebills.

This comes as utility rates across the board increase -- due torise 4.5 percent annually over the next five years. Separating outwhat is standard sticker shock with genuinely incorrect bills canbe challenging.

Some instances are clear. Olivia Borrows moved into a350-square-foot apartment near Green Lake last June. The first billto arrive was outrageous -- $6,187.27, due July 11.

"I kind of just laughed because it was completely impossible," saidBorrows, a flight attendant. But then, she said, "I got a littlescared."

Ms. Borrows called City Light and the person on the other end alsolaughed. Within three minutes, said Ms. Borrows, her bill wascorrected to its actual amount -- $45. It's unclear why Borrowsreceived such a high bill.

Others, though, may feel incorrect, even if they're right. In arecent City Council meeting, Councilmember Mosqueda mentioned aneighbor of hers who'd received a bill for more than $1,000. Butaccording to City Light's Thomsen, that bill was accurate.

"The property manager changed the locks on the meter room and didnot provide us with access for 18 months, which forced us toestimate usage for that entire timeframe," he wrote in an email."Once we got actual reads, the bills reflected electricity that hadbeen used, but not paid for. In those circumstances, we will workout payment plans for up to the length of time that the estimateswere in place."

One of McNaul Ebel Nawrot and Helgren's founding members, Robert Sulkin, represented former UW football coach Neuheisel inhis wrongful termination suit against the college. Mr. Sulkin alsodefended former Mayor Ed Murray in the sexual abuse allegationsbrought by Delvonn Heckard.

The lawyer on the City Light case is Matthew Campos, according tohis assistant. Campos represents Deadliest Catch star Sig Hansen inthe molestation case brought against him by his estrangeddaughter.

A spokesperson for the firm did not respond to a request forcomment, so it's unknown how many customers may have responded totheir call.

Mayor Jenny Durkan has taken a keen interest in issues at SeattleCity Light. In a statement responding to the audit, she said, "CityLight has faced many challenges; we have been making significantpositive progress including clearing a backlog of more than 74,000account billing issues that created much of the frustration thatcustomers have experienced."

Her nominee to be the utility's next CEO, Debra Smith, has herfirst hearing before the Seattle City Council on Sept. 13. Ifapproved, she will earn $340,000, on par with what her predecessorLarry Weis earned. Ms. Durkan is putting it on Smith, whom themayor has described as obsessed with customer service, to takecontrol of the department's issues: "She is what the utility needsat exactly this time -- an experienced leader who I trust will makeany necessary corrections to ensure the utility is accountable toits customers."

In the wage and hour class action, the Plaintiff drivers allegethat Serenity Transportation misclassified their status asindependent contractors and as a result failed to pay themovertime, among other wage and hour violations. They also seek torecover damages from defendant SCI California, Inc.

By Order filed Aug. 1, 2018, the Court certified for classtreatment the Plaintiffs' claims against Serenity Transportation,except that to the extent the trier of fact finds that theiron-call time is not compensable; in that case their overtime andminimum wage claims must be tried individually. It also deniedcertification of the California Labor Code Section 2810.3 claimagainst SCI California, Inc.

Now pending before the Court is Plaintiffs' motion for leave tofile a motion for reconsideration of that portion of the Court'sAug. 1, 2018 order denying class certification.

As stated at the case management conference on Aug. 23, 2018,Magistrate Judge Corley holds that leave is granted to file themotion for reconsideration as to the California Labor Code Section2810.3 issues. She directed the parties to follow the briefingschedule set forth at the hearing. However, she denied leave as tothe argument about individualized damages.

The Plaintiffs insist that the Court erroneously deniedcertification because of the possibility that damages may have tobe calculated on an individual basis and therefore manifestlyfailed to consider dispositive legal argument. The Magistratedisagrees. She holds that evidence of an employer's uniform policyto misclassify a group of employees as exempt from overtimerequirements is not sufficient to support class certificationbecause misclassification alone does not establish liability forovertime violations.

In addition, the Magistrate Holds does not find on the classcertification record that Serenity's business model requireddrivers to work overtime, unless the trier of fact finds thaton-call time is compensable. The Plaintiffs' attempts at provingliability through common proof are unpersuasive.

The Plaintiffs' proposal to calculate overtime based on Serenity'sestimate that calls take between one to four hours, and use themid-point for calculating overtime, is also unpersuasive. TheMagistrate finds that there is a big difference between one hourand four hours for purposes of determining overtime and minimumwage violations, and the Plaintiffs have not offered any analysisor evidence that their proposal leads to a result that is anythingclose to accurate.

For all these reasons, Magistrate Judge Corley declines toreconsider at this time its decision not to try on a classwidebasis the claims that depend on hours worked if the trier of factfinds that on-call time is not compensable. This decision,however, can be revisited after the trial on the certified claims,if necessary.

The Order disposes of Docket No. 282.

A full-text copy of the Court's Sept. 4, 2018 Order is available athttps://is.gd/k9IrAi from Leagle.com.

SOUTHBURY TRAINING: Bid to Correct Attys' Fees in Messier Denied----------------------------------------------------------------In the case, RICHARD MESSIER et al., Plaintiffs, v. SOUTHBURYTRAINING SCHOOL et al., Defendants, Case No. 3:94-cv-01706 (VAB)(D. Conn.), Judge Victor A. Bolden of the U.S. District Court forthe District of Connecticut denied the motion of one of theattorneys for the Plaintiffs, David C. Shaw, for the Court tocorrect certain alleged errors in its March 27, 2015 Ruling on theamount of attorney's fees, costs, and expenses that the Plaintiffs'counsel is to be awarded.

Residents of Southbury Training School, an institution for thementally disabled in Connecticut, brought the class-action caseagainst Southbury Training School, the Director of SouthburyTraining School, and the Commissioner of the Connecticut Departmentof Developmental Services, seeking injunctive relief for allegedconstitutional and statutory violations relating to the conditions,services, and programs at Southbury Training School, theappropriateness of individual placements in a more integratedsetting, and the right to be free of discrimination with respect tohaving such placements made.

In 1994, the Plaintiffs sued the Defendants. After a bench-trialthat lasted 123 days, in 1999, the Court ruled that the Defendantshad deprived the class members of their procedural due process andstatutory rights to professional judgment regarding theappropriateness of community placements, as well as their statutoryright to be free of discrimination with respect to such placements. Based on the Court's finding of liability on the Plaintiffs'community placement claim, the parties reached a settlement on theissue of remedies. The Plaintiffs' motion for attorneys' fees andcosts followed. The petition, as supplemented through October2014, sought a total award of $7,676,839.09.

The Court ruled on the Plaintiffs' motion in two parts. The firstruling addressed the Plaintiffs' "degree of success" on the merits. The second ruling addressed what award of attorneys' fees, costs,and expenses was reasonable in light of the Plaintiffs' limitedsuccess in the case. Having considered a number of factors,including time reasonably expended on successful claims, excessive,redundant or unnecessary time and expenses, excessiveness in ratessought, and loss in the time-value-of-money that an award ofinterest would cover, the Court awarded the Plaintiffs an aggregateaward of $2,724,763.28.

The Public Interest Law Center of Philadelphia ("PILCO") and Mr.Shaw separately moved for the Court to correct what they allegedwere errors in the Court's ruling awarding the Plaintiffsattorneys' fees, costs, and expenses. PILCO subsequently settledits portion of the fees award.

On the Court heard oral argument on July 3, 2018, at which theCourt granted leave for the parties to file post-hearingsubmissions. The parties submitted additional filings on July 20,2018, and on Aug. 3, 2018, respectively.

Mr. Shaw asks whether it makes sense to count 6.3 years duringwhich no litigation occurred at all toward to the time it took tolitigate the case, but the inquiry is whether the Court overlookedcontrolling decisions or factual matters that were put before it onthe underlying motion. Judge Bolden finds that Mr. Shaw has notmade such a showing. Reconsideration is inappropriate if it ismerely a second bite at a fully briefed and considered underlyingruling whose outcome disappointed one of the litigants. Hetherefore declines to reconsider the matter.

Mr. Shaw also argues that the Court determined that the Plaintiffs'counsel were entitled to fees at the current rate but failed to usecurrent rates when making the final fee award. The Judgedetermined that, although the rates the Plaintiffs sought wereexcessive and did not reflect the then-applicable prevailing marketrates at any particular time, it would not make a downwardadjustment of 20% to correct for inflated rates because any suchadjustment would be offset by the complementary upward adjustmentto all of the counsel's past billing to the now-higher prevailingmarket rates to account for the time-value-of-money that an awardof interest would cover. The Court declined to adjust all of thecounsel's past billing one way or the other, and the Judge declinesto do so now.

Finally, Mr. Shaw argues that the Court erroneously countedapproximately 175 hours as time expended on the liability phase ofthe litigation when, in fact, these were hour spent on the feepetition. The Judge disagrees. He says on a motion forreconsideration, the issue is whether Mr. Shaw can point tocontrolling decisions or data that the Court overlooked in givingeffect to the principle of rough justice. Absent such a showingand in due regard for her superior understanding of the litigation,the Judge declines to reconsider Judge Burns' ruling.

For these reasons, Judge Bolden denied the motion.

A full-text copy of the Court's Aug. 31, 2018 Ruling and Order isavailable at https://is.gd/zWRNZ4 from Leagle.com.

The Court has previously certified the Class pursuant to Rule 23(a)and Rule 23(b)(3) defined as all persons in the United States,except those residing in Arkansas and Tennessee, who, in betweenJuly 28, 1987, and Feb. 24, 1998, (1) were insured by a vehiclecasualty insurance policy issued by Defendant State Farm and (2)made a claim for vehicle repairs pursuant to their policy and hadnon-factory authorized and/or non-OEM (Original EquipmentManufacturer) crash parts installed on or specified for theirvehicles or else received monetary compensation determined inrelation to the cost of such parts.

It previously appointed and confirmed Mark Hale, Todd Shadle andLaurie Loger as the Class representatives.

Pursuant to the Settlement Agreement, the Judge appointed EpiqClass Action & Claims Solutions, Inc. to serve as the ClaimsAdministrator. Epiq, in consultation with its notice expert,Cameron R. Azari, Esq. of Hilsoft Notifications, previouslyprovided the notice to the Class and reported to the Courtregarding the implementation of the prior notice plan and optouts.

The Final Fairness Hearing is set for Dec. 13, 2018 at 9:00 a.m. No later than Oct. 16, 2018, which is 31 days prior to the deadlinefor the Class Members to object to the Settlement, the ClassPlaintiffs must file papers in support of final settlementapproval, and the Class Counsel's application for attorneys' feesand expenses and the requested service awards to the ClassRepresentatives. No later than Dec. 6, 2018, which is seven daysprior to the Final Approval Hearing, the Class Plaintiffs must filereply papers in support of final approval of the SettlementAgreement and respond to any written objections. The Defendantsmay (but are not required to) file papers in support of finalapproval of the Settlement Agreement and in response to writtenobjections, so long as they do so no later than Dec. 6, 2018.

The Court previously approved a Class Notice Plan. This Plan hasbeen completed as approved. The Judge directed the Parties and theClaims Administrator to file the Class Settlement Notice Plan withforms of notice no later than Sept. 5, 2018 and to complete allaspects of the Settlement Notice plan no later than Nov. 1, 2018,in accordance with the terms of the Settlement Agreement.

The Claims Administrator will file with the Court by no later thanDec. 6, 2018, which is seven days prior to the Final ApprovalHearing, proof that Notice was provided in accordance with theSettlement Agreement and the Order, as well as proof that noticewas provided to the appropriate State and federal officialspursuant to the Class Action Fairness Act.

To object to the Settlement Agreement, the Class Members mustfollow the directions in the Notice and file a written Objectionwith the Court by the Objection Deadline.

iv. Dec. 6, 2018 - Deadline for Parties to File the Following:(1) Proof of Class Notice and CAFA Notice; and (2) Motion andMemorandum in Support of Final Approval, including responses to anyObjections.

v. Dec. 13, 2018 at 9:00 a.m. - Final Approval Hearing

A full-text copy of the Court's Sept. 4, 2018 Order is available athttps://is.gd/2RmfOo from Leagle.com.

Illinois Chamber of Commerce, Objector, represented by August M.Appleton, August Appleton - Attorney.

The matter is before the Court on SnS' Motion for Summary Judgmentas to opt-in Plaintiff Katrina Wolfshoefer, and the Plaintiffs'Motion to Dismiss.

On Oct. 25, 2017, the Court granted the Plaintiffs' Motion to StayBriefing on two motions for summary judgment until it ruled on theParties' competing motions to certify/decertify the Plaintiffs'class action. One of those motions for summary judgment wasdirected at Wolfshoefer on the ground that her deposition testimonyconclusively established that she met the definition of anovertime-exempt managerial and/or administrative employee. In theCourt's order granting the Motion to Stay, the Court opined that,in the event it certified the Plaintiffs' class action, theDefendant's arguments regarding Wolfshoefer will likely be commonto the other class members.

On Dec. 22, 2017, the Court granted the Plaintiffs' Motion toCertify. On Jan. 10, 2018, the Court lifted the stay on briefing. Rather than respond to SnS' Motion for Summary Judgment, thePlaintiffs moved to dismiss it, arguing that the Court's ordergranting certification rendered the motion moot. SnS opposes theMotion to Dismiss and has filed a sur-reply.

Judge Ross concludes that SnS' Motion for Summary Judgment is notmoot as the Plaintiffs argue. While the Court's certificationorder may bear directly on the merits of SnS' Motion for SummaryJudgment, SnS retains a cognizable legal interest in the outcome ofthat motion. For this reason, he will deny Plaintiffs' Motion toDismiss.

Accordingly, the Judge denied the Plaintiffs' Motion to DismissDefendant's Motion for Summary Judgment as to Katrina Wolfshoefer. The Plaintiffs shall, no later than Sept. 7, 2018, file theirresponse to the Defendant's Motion for Summary Judgment. TheDefendant shall, no later than Sept. 12, 2018, file any reply.

A full-text copy of the Court's Sept. 5, 2018 Memorandum and Orderis available at https://is.gd/JY4OLm from Leagle.com.

The Plaintiff Hockensmith was employed by the Defendants as managerfrom April 2011 to August 2017.

Swami Management Corp., d/b/a Three Crowns Motor Lodge and TheColton Motel, is a corporation organized under the laws of theCommonwealth of Pennsylvania. The Company is engaged in thehospitality industry. [BN]

Investors filed a class action complaint against Terex for allegedviolations of the Securities Exchange Act of 1934. According to thecomplaint, Terex used improper accounting practices and falselytouted the company's business prospects in order to disguisedramatically declining demand for its products. Specifically, Terexprematurely recognized revenue in connection with product sales bymoving its products to off-site locations and reporting them assold, even though they were not being sent to customers. Terex'sattempts to boost sales, meet market expectations, and maintainunrealistic financial projections were in vain, as the companyeventually admitted a significant net loss and massive goodwillimpairment charges. On March 31, 2018, U.S. District Judge RobertN. Chatigny denied in part defendants' motion to dismissplaintiff's complaint, paving the way for litigation to proceed.

View this information on the law firm's Shareholder Rights Blog:https://www.robbinsarroyo.com/terex-corporation/

Terex Shareholders Have Legal Options

Concerned shareholders who would like more information about theirrights and potential remedies can contact attorney Leonid Kandinovat (800) 350-6003, LKandinov@robbinsarroyo.com, or via theshareholder information form on the firm's website.

Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firmrepresents individual and institutional investors in shareholderderivative and securities class action lawsuits, and has helped itsclients realize more than $1 billion of value for themselves andthe companies in which they have invested. [GN]

TESLA INC: Andrew Left Sues over Musk's Misleading Tweets---------------------------------------------------------ANDREW E. LEFT, individually and on behalf of all others similarlysituated, Plaintiff v. TESLA, INC.; amd ELON R. MUSK, Defendants,Case No. 4:18-cv-05463-JSW (N.D. Cal., Sept. 6, 2018) is a classaction on behalf of all persons who purchased, sold, or otherwisetransacted in Tesla securities between August 7, 2018 and August17, 2018. The action is brought against Tesla and its Chairman andChief Executive Officer Elon R. Musk for violations of theSecurities Exchange Act of 1934.

According to the complaint, the Defendant Musk has a long-standingpublic feud with short-sellers and often uses his personal Twitteraccount to taunt and confront skeptics of his company. For example,on May 4, 2018, he tweeted that the "short burn of the century wascoming soon" and that the "sheer magnitude of the short carnagewill be unreal. If you're short, I suggest tiptoeing quietly to theexit." He also tweeted on June 17, 2018, that Tesla short-sellershad "about three weeks before their short position explodes."

The Defendants artificially manipulated the price of Teslasecurities to damage the Company's short-sellers, and in theprocess, damaged all purchasers of Tesla securities by issuingmaterially false and misleading information. The Defendants'fraudulent scheme started on August 7, 2018, when Defendant Musk,via his verified personal Twitter account, issued the followingtweet: "Am considering taking Tesla private at $420. Fundingsecured." Later that day, Defendant Musk issued another tweet,stating: "Investor support is confirmed. Only reason why this isnot certain is that it's contingent on a shareholder vote."

The lawsuit says Defendant Musk artificially manipulated the priceof Tesla securities with objectively false tweets in order to"burn" the Company's short-sellers. In the succeeding days, thetruth regarding the supposedly "secure" financing needed toeffectuate the going-private transaction began to emerge, exposingthe fraudulent scheme, and in the process, injuring Class Periodinvestors as the price of Tesla securities deteriorated rapidly. Asa result of Defendants' wrongful acts and misleading statements,and the precipitous artificial inflation in the market value of theCompany's securities and subsequent decline, the Plaintiff andother Class members have suffered significant losses and damages.

Tesla, Inc. designs, develops, manufactures, and sells electricvehicles, and energy generation and storage systems in the UnitedStates, China, Norway, and internationally. The company wasformerly known as Tesla Motors, Inc. and changed its name to Tesla,Inc. in February 2017. Tesla, Inc. was founded in 2003 and isheadquartered in Palo Alto, California. [BN]

TESLA INC: Faces Xing Fan Suit over Drop in Share Price-------------------------------------------------------ZHI XING FAN, individually and on behalf of all others similarlysituated, Plaintiff v. TESLA, INC., and ELON R. MUSK, Defendants,Case No. 4:18-cv-05470-YGR (N.D. Cal., Sept. 6, 2018) is an actionby the Plaintiff and the class who purchased or otherwise acquiredTesla securities between August 7, 2018 through August 17, 2018,seeking to recover damages caused by the Defendants' violations ofthe federal securities laws, and to pursue remedies under theSecurities Exchange Act of 1934.

According to the complaint, on August 7, 2018, the Defendant ElonMusk, Tesla's co-founder, Chairman, and Chief Executive Officer,issued the following statement via Twitter: "Am Considering takingTesla private at $420. Funding secured." In reaction to Musk'stweet, the price of Tesla's common stock increased, reaching anintra-day high of $387.46 per share—$45.47 per share higher thanthe previous day's closing price—and closed at $379.57 per shareon August 7, 2018, an increase of $37.58 per share, orapproximately 11%.

Throughout the Class Period, Defendants made materially false andmisleading statements regarding the Company's business, operationaland compliance policies. Specifically, Defendants made false andmisleading statements and/or failed to disclose that: (i)Defendants had not secured funding for a transaction to take Teslaprivate; (ii) Tesla's Board of Directors was unaware of any plan totake Tesla private; (iii) Musk had not retained advisors inconnection with his purported plan to take Tesla private; (iv) thestatus and likelihood of Tesla going private was thereforemisrepresented to the market; and (v) as a result, Tesla's publicstatements were materially false and misleading at all relevanttimes.

On August 8, 2018, reports began to emerge that the SEC had madeinquiries into Musk's tweet and whether it was truthful that hedid, in fact, have "funding secured" to take Tesla private.Following this news, Tesla's stock price fell $9.23 per share, or2.4%, to close at $370.34 per share on August 8, 2018. On August 9,2018, Tesla's stock price continued to fall after facts emergedafter the market closed on August 8, 2018 and later on August 9,2018 that Musk's tweet had, in fact, triggered an SEC inquiry.

The Wall Street Journal reported that the SEC "has asked Musk toproduce proof that he's secured funding. . ." and numerous othermedia sources reported that Musk did not have funding secured priorto issuing his statement to that effect via Twitter. Following thisnews, Tesla's stock price fell by more than $17.89 per share,nearly 5%, to close at $352.45 per share on August 9, 2018,resulting in a two-day decline of more than 7%.

On August 13, 2018, post-market, Musk stated via Twitter: "I'mexcited to work with Silver Lake and Goldman Sachs as financialadvisers, plus Wachtell, Lipton, Rosen & Katz and Munger, Tolles &Olson as legal advisors, on the proposal to take Tesla private."However, on August 14, 2018, Bloomberg reported that at the time ofMusk's August 13, 2018 Twitter announcement, neither Goldman Sachsnor Silver Lake were yet working with Musk pursuant to a signedagreement or in an official capacity. On this news, Tesla's stockprice fell $8.77 per share, or nearly 2.5%, to close at $347.64 pershare on August 14, 2018.

Then, on August 16, 2018, The New York Times published an interviewwith Musk in which he described the circumstances leading up to thetweet, including his high stress levels and his use of thesedative-hypnotic sleep medication Ambien in order to cope with hisstress. On this news, the price of Tesla stock declined $29.95 pershare, or 8.93%, to close at $305.50 per share on August 17, 2018.On August 24, 2018, Musk issued a statement on the Company'swebsite stating that he would abandon his plan to take Teslaprivate. As a result of Defendants' wrongful acts and omissions,and the precipitous decline in the market value of the Company'ssecurities, Plaintiff and other Class members have sufferedsignificant losses and damages.

Tesla, Inc. designs, develops, manufactures, and sells electricvehicles, and energy generation and storage systems in the UnitedStates, China, Norway, and internationally. The company wasformerly known as Tesla Motors, Inc. and changed its name to Tesla,Inc. in February 2017. Tesla, Inc. was founded in 2003 and isheadquartered in Palo Alto, California. [BN]

Attorneys for FREDERICK FARLEY, Investigator and Supervisor forHunt County Juvenile Detention Center, individually and in hisofficial capacity; KENNETH WRIGHT, individually and in his officialcapacity; SHANIGIA WILLIAMS, individually and in her officialcapacity; and DAVID REILLY, Interim Executive Director:

TITLE SOURCE: Settlement in Swamy FLSA Suit Has Final Approval--------------------------------------------------------------In the case, SOM SWAMY, on behalf of himself and on behalf of allothers similarly situated, Plaintiff, v. TITLE SOURCE INC.,Defendant, Case No. C 17-01175 WHA (N.D. Cal.), Judge William Alsupof the U.S. District Court for the Northern District of California(i) granted the parties' motion for final approval of a proposedclass settlement and approval of an individual FLSA settlement;(ii) granted the Plaintiff's motion for an award of attorney's feesand costs to the class counsel; and denied the Plaintiff's motionfor a service award.

Swamy asserted class claims against his former employer, theDefendant, under the California Labor Code and the Fair LaborStandards Act for failing to reimburse necessary business expenses,failing to pay overtime, and providing inaccurate wage statements. A prior order certified a class only as to the Plaintiff's expensereimbursement and wage statement claims under California law . Thatsame order declined to certify a class with respect to thePlaintiff's overtime claims and denied the Plaintiff's motion tocertify a FLSA collective action. The class consists of allpersons employed by defendant as an external staff appraiser inCalifornia between March 2013 and April 2018.

A May 2018 order granted the parties' joint motion for preliminaryapproval of a proposed class action settlement. The order alsoapproved, as to form and content, a notice concerning the classsettlement agreement and final approval hearing. The claimsadministrator mailed the class notice to all 50 potential classmembers at addresses obtained from the Defendant. The Defendantalso emailed the notice and opt-out forms to each class member.

No objections to the settlement have been received by the counselor the class administrator. Five members of the class opted out ofthe settlement agreement. The settlement agreement provides for anaverage cash payment of nearly $12,000 dollars to each classmember. The classwide release is limited to the certified claims.

The parties now move for final approval of the class settlementagreement and, separately, for approval of a settlement of thePlaintiff's individual FLSA claim. The lass counsel also moves foran award of (1) $900,216 in attorney's fees, (2) $99,433 in costs,and (3) a $5,000 incentive award to the class representative.

Judge Alsup (i) granted final approval of the proposed classsettlement, (ii) granted approval of the settlement of thePlaintiff's individual FLSA claim, (iii) granted the request for anaward of attorney's fees and costs, and (iv) denied the request foran incentive award. Judgment will be entered separately.

By Oct. 2, 2018, and every 14 calendar days thereafter, the partieswill file a joint submission explaining whether or not the claimsadministration process is proceeding according to schedule and howany snafus will be cured.

A full-text copy of the Court's Sept. 5, 2018 Order is available athttps://is.gd/CmAKZO from Leagle.com.

The Plaintiff Fowler was employed by the Defendants as non-exempt,hourly employee from April 2013 to July 2017.

Total Merchant Services, Inc. provides credit card processingservices for small businesses and merchants in the United Statesand Canada. Total Merchant Services, Inc. was founded in 1996 andis based in Basalt, Colorado. As of July 11, 2017, Total MerchantServices, Inc. operates as a subsidiary of North American BancardHoldings, LLC. [BN]

Sloatman, has filed the putative class action against Triad,alleging violations of the Telephone Consumer Protection Act("TCPA"). The essential allegation is that Triad, using anautomatic telephone dialing system, called Sloatman's cell phonenumber in September 2016 to make a commercial solicitation, withouther prior consent.

Triad's current motion asks the Court to strike the Complaint andimpose sanctions under Rule 11, Fed. R. Civ. P. The Complaint inthe case, according to Triad, lacks the necessary evidentiarysupport. It states without objection that such a commercial callis permissible with the recipient's prior consent. Triad hasattached what it calls "irrefutable" evidence of consent in theform of an "opt-in" printout from its website,www.comparetopschools.com. This evidence, it says, demonstratesthat on Sept. 9, 2016, Sloatman explicitly consented to beingcontacted at her cell phone number, which she supplied by typing itinto the online form and checking the appropriate box.

Sloatman's counsel explained that his client has never visited thewebsite nor has she provided her information, including hercellular telephone number to the Defendant for any reason. He wenton to state that the "consent" small print on the website would nothave been visible and that contact information or consent may besupplied for limited purposes only.

Judge McNulty finds that there is a factual dispute, which must beresolved by the usual means, not in the context of a sideshowmotion for sanctions. While the focus of Rule 11 is on whether aclaim is wholly without merit, and is not dictated by whetherresources will be expended in deciding the motion, Rule 11 motionsshould conserve rather than misuse judicial resources. For thesereasons, the Judge denied Triad's motion.

A full-text copy of the Court's Sept. 4, 2018 Opinion and Order isavailable at https://is.gd/2mQJgv from Leagle.com.

TRIBUNE MEDIA: Arbitrage Event-Driven Fund Files Class Action-------------------------------------------------------------Adam Jacobson, writing for Radio+Television Business Report,reports that if you thought Tribune Media's now-imploded mergerwith Sinclair Broadcast Group was largely due to actions taken bySinclair, you may want to look closely at what a private equityfirm believes.

This entity, named the Arbitrage Event-Driven Fund, on Sept. 10filed a class action complaint with an Illinois federal districtcourt against Tribune. A jury trial is being demanded. The charge?Tribune executives cost investors millions of dollars for failingto disclose Sinclair's ill-fated actions.

As the fund sees it, Tribune CEO Peter Kern, EVP/CFO ChandlerBigelow and EVP/General Counsel Edward Lazarus each failed toreveal to the investors that Sinclair had declined to honor arequest by the FCC to divest certain television stations -- a moveTribune has said would have cleared the transaction.

Instead, the $3.9 billion merger was terminated by Tribune,resulting in competing lawsuits alleging breach of contract.

For the Arbitrage Event-Driven Fund, managed by New York-basedWater Island LLC, the lack of disclosure from Tribune's threeC-Suite executives cost investors some $564 million. This isparticularly vexing to the Fund, as Kern and his colleagues arebelieved to have known since November 2017 about the problemsassociated with the Sinclair merger.

The Fund filed the complaint based on information gathered by itsattorneys which included, among other things, a review of pressreleases and other public statements issued by Tribune Media, mediaand analyst reports about Tribune, publicly available informationin Tribune Media Company v. Sinclair Broadcast Group, and otherpublic information regarding Tribune.

Noting the statement made July 16, 2018, from FCC Chairman Ajit Paiin which he expressed "serious concerns" about the well-publicizedmerger. In particular, Chairman Pai stated that "certain stationdivestitures that have been proposed to the FCC would allowSinclair to control those stations in practice, even if not inname, in violation of the law."

The Fund asserts, "This signal that Sinclair was not agreeing tothe regulatory requirements necessary to complete the merger -- thestation divestitures discussed frequently in Tribune's publicfilings since May 2017 -- caused Tribune stock to close down $6.44per share (over 16%), costing investors more than $564 million invalue."

As such, the class action suit was filed in Illinois, based on"misrepresentations and omissions of material fact" made by Tribunein its public filings concerning Sinclair's conduct during theregulatory approval process necessary to complete the merger.

The goal is to get the court to determine that the action is aproper class action under Rule 23 of the Federal Rules of CivilProcedure; to award compensatory damages; and to declare that aviolation of Section 10(b) of the Exchange Act as well as Rule10b-5 was done.

TRINITY RESTAURANT: Whitfield Seeks to Certify Class of Servers---------------------------------------------------------------MERCEDES WHITFIELD, on behalf of herself and similarly situatedemployees, the Plaintiff, vs TRINITY RESTAURANT GROUP, LLC, theDefendant, Case 2:18-cv-10973-DML-EAS (E.D. Mich.), the Plaintiffmoves the Court for entry of an order certifying Plaintiff's claimunder the Michigan Workforce Opportunity Wage Act and proceed onbehalf of the following class:

"all current and former Servers who worked for Defendant TrinityRestaurant Group, LLC at its IHOP restaurants in the State ofMichigan since March 26, 2015."

The Plaintiff challenges Defendant's failure to pay its Servers thefull minimum wage based on two uniform practices: (1) requiringServers to perform certain types and amounts of sidework; and (2)requiring Servers to share a portion of their tips with otherrestaurant employees called expediters. The Defendant readilyadmits the existence of these practices but argues that they arepermissible under the Michigan Workforce Opportunity Wage Act, thelawsuit says.[CC]

U.S.A.: Mapuatuli et al. File Petition for Writ of Certiorari-------------------------------------------------------------In the case, ALAN MAPUATULI; GILBERT MEDINA; and GARY VICTOR DUBIN,a Member of the Hawaii Bar, doing business as THE DUBIN LAWOFFICES, for themselves and for all others similarly situated, thePetitioners, v. JEFFERSON B. SESSIONS III, in his official capacityas United States Attorney General; CHARLES E. SAMUELS, JR., in hisofficial capacity as Director of the United States Bureau ofPrisons; J. RAY ORMOND, in his official capacity as Warden of theHonolulu Federal Detention Center; and FLORENCE T. NAKAKUNI, in herofficial capacity as United States Attorney for the District ofHawaii, the Respondents, Case No. _____ (U.S.), the Petitionersfiled an application to extend the time to file a petition for writof certiorari submitted to the Hon. Judge Anthony M. Kennedy.

The Petitioners said, "This application for a 60-day extension oftime if necessary in which to file a petition for writ ofcertiorari is being timely filed by mail on May 21, 2018, pursuantto Supreme Court Rule 22, Rule 30 and Rule 33.2. The Memorandumdecision of the Ninth Circuit Court of Appeals, was filed in thiscase on March 2, 2018, affirming an Order of the United StatesDistrict Court for the District of Hawaii, the original partieshaving been substituted for by Order of the Circuit Court. APetition for Writ of Certiorari to this Court by Petitioners istherefore due on or before May 31, 2018, ten days from today. Thisapplication for an extension of time is therefore being timelyfiled."

The Plaintiff defines the putative class to include all persons orentities who, directly or indirectly, purchased or committed topurchase (and subsequently closed a binding commitment to purchase)an interest in Uber securities between June 6, 2014 and Nov. 27,2017.

The gravamen of the FAC is that Uber and Kalanick disseminatedfalse and misleading statements and omissions for the purpose ofinducing the purchase of billions of dollars of Uber securities. The FAC divides the Defendants' allegedly fraudulent statementsinto six categories: (1) growth; (2) legal compliance; (3)competitive spirit; (4) ethical culture; (5) self-driving cartechnologies; and (6) data security. The Plaintiff claims that theprice of Uber securities declined as Uber's various corporatescandals came to light, and class members consequently lostbillions of dollars.

Currently pending before the Court are the Defendants' separatelyfiled motions to dismiss the FAC. The Defendants contend that thePlaintiff fails to state a claim for relief under Rules 8(a) and9(b).

On Feb. 16, 2018, the Plaintiff filed an omnibus opposition to theDefendants' motions. Each Defendant replied on March 9, 2018. They also filed motions to stay and/or bifurcate discovery. OnFeb. 2, 2018, the Plaintiff opposed the stay motions. On Feb. 9,2018, the Defendants each replied.

On April 19, 2018, the Court held a hearing on the motions. JudgeGilliam finds that (i) the Defendants' allegedly false ormisleading growth statements fail to conform with the presentationrequirements of Rules 8(a) and 9(b); (ii) the Defendants' omissionof the information did not violate the securities laws; (iii) theDefendants never claimed that Uber would never again suffer a databreach, nor does the Plaintiff suggest as much; and in the absenceof additional factual allegations showing that these statementswere either false or misleading, the Defendants' representationsthat they were protecting users' privacy are not actionable; and(iv) none of the challenged statements are specifically linked topractices alleged to be unlawful (including for instance,institutionalized gender discrimination and misappropriation ofother companies' technologies) in a way that plausibly suggests therepresentations are false or misleading.

Notwithstanding the discussed deficiencies, the Judge cannotdefinitively say at this stage that the Plaintiff could not stateits claims with sufficient specificity. He therefore provided thePlaintiff with an additional opportunity to amend its complaint.

Finally, the Judge does not need further factual development toanalyze the complaint's sufficiency. He accordingly also deferreddeciding whether to bifurcate discovery until the litigationadvances beyond the pleading stage.

For the foregoing reasons, Judge Gilliam granted the Defendants'motions with leave to amend, and granted their motions to staydiscovery pending the Order. Any amended complaint must include astatement-by-statement analysis of the allegedly actionablestatements, and must be filed within 28 days of the date of theOrder.

A full-text copy of the Court's Aug. 31, 2018 Order is available athttps://is.gd/c7Yzq0 from Leagle.com.

UBER TECHNOLOGIES: Hunton Andrews Discuses Arbitration Ruling-------------------------------------------------------------Hunton Andrews Kurth LLP disclosed that on September 5, 2018, theU.S. District Court for the Central District of California heldthat a class action arising from a 2016 Uber Technologies Inc.("Uber") data breach must proceed to arbitration. The case wasinitially filed after a 2016 data breach that affectedapproximately 600,000 Uber drivers and 57 million Uber customers.Upon registration with Uber, the drivers and customers entered intoa service agreement that contained an arbitration provision. Basedon this provision, the defendants moved to compel arbitration. Theyargued that the provision's express language delegated thethreshold issue of whether the case should be arbitrated (alsocalled an issue of "substantive arbitrability") to an arbitrator,not to the court. The plaintiffs countered, arguing that thearbitration clause was both inapplicable to the 2016 data breachand unconscionable, and that Uber customers did not receivereasonable notice of the electronic terms agreement when theyregistered.

The court rejected each of the plaintiffs' arguments. First, citingMohammed v. Uber Techs., Inc., 848 F.3d 1201, 1209 (9th Cir. 2016),the court held that the agreement's language "clearly andunmistakably" delegated to the arbitrator the threshold andsubstantive issue of whether the 2016 breach was one that should bearbitrated. Second, whether the arbitration provision wasunconscionable was similarly a question of substantivearbitrability "expressly delegated to the arbitrator." Third, thecourt noted that the plaintiffs offered no evidence of confusion orlack of notice, and that many other courts had found similarelectronic notice to be reasonable.

The case has been stayed pending completion of the arbitration.[GN]

UBIQUITI NETWORKS: Competing Motions for Lead Plaintiff Pending---------------------------------------------------------------Ubiquiti Networks, Inc. said in its Form 10-K report filed with theU.S. Securities and Exchange Commission for the fiscal year endedJune 30, 2018, that competing motions for lead plaintiff is stillpending.

On February 21, 2018, a purported class action, captioned PaulVanderheiden v. Ubiquiti Networks, Inc. et al., No. 18-cv-01620(the "Vanderheiden Action"), was filed in the United StatesDistrict Court for the Southern District of New York against theCompany and certain of its current and former officers. TheVanderheiden Action complaint alleges that the defendants violatedSections 10(b) and 20(a) of the Securities Exchange Act of 1934 andRule 10b-5 promulgated thereunder by making false and/or misleadingstatements, including purported overstatements of the Company'sonline community user engagement metrics and accounts receivable.

On February 28, 2018 and March 13, 2018, substantially similarpurported class actions, captioned Xiya Qian v. Ubiquiti Networks,Inc. et al., No. 18-cv-01841 (the "Qian Action") and John Kho v.Ubiquiti Networks, Inc. et al., No. 18-cv-02242 (the "Kho Action",together with the Vanderheiden Action and the Qian Action, the"Class Actions"), respectively, were filed in the United StatesDistrict Court for the Southern District of New York.

Plaintiff Xiya Qian has moved to be appointed lead plaintiff, andPlaintiff John Kho has opposed Plaintiff Qian's motion and soughtto have himself appointed lead plaintiff. The issue is pendingbefore the court.

Within ten days of the court's order appointing lead plaintiff andlead counsel, Plaintiffs are required either to inform defendantsthat a consolidated class action complaint will be served within 60days or notify defendants that one of the original complaints willbe the operative complaint, and defendants will have 60 daysthereafter in which to respond.

Ubiquiti Networks said, "While the Company believes that the ClassActions are without merit and plans to vigorously defend itselfagainst these claims, there can be no assurance that the Companywill prevail in the lawsuits. The Company cannot currently estimatethe possible loss or range of losses, if any, that it mayexperience in connection with these litigations."

No further updates were provided in the Company's SEC report.

Ubiquiti Networks, Inc. develops networking technology for serviceproviders, enterprises, and consumers. It focuses on threeprincipal technologies, including high-capacity distributedInternet access, unified information technology, and consumerelectronics for home and personal use.

UNITED STATES: Williams Files Petition for Writ of Certiorari-------------------------------------------------------------Valerie Louise Williams filed a petition for writ of certiorari tothe U.S. Supreme Court from the decision of the United States Courtof Appeals for the Fourth Circuit in the case captioned ValerieLouise Williams, the Petitioner, v. United States of America, theRespondent, Case No. 17-4686 (4th Cir.).[BN]

The question before the state Supreme Court is not a particularlythorny one: what is the correct interpretation of Utah's HospitalLien Statute?

This proposed class action involves persons injured in caraccidents who filed personal injury claims against the thirdparties at fault. All had hospital liens placed on any potentialrecovery from those claims, and all reached settlement agreements,paying their attorney fees by way of a contingent fee on therecovery. The patients contend that the hospitals failed to paytheir fair share of the attorney fees including court costs andother necessary expenses the patients incurred in generating thesettlement proceeds.

The plaintiffs argued that the Hospital Lien Statute requires ahospital to pay its proportional share of an injured person'sattorney fees and costs when a hospital lien is paid due to theefforts of the injured person or his or her attorney.

The defendants countered that the statute contains no suchlanguage, and that the statute operates instead to establish apriority system as to entitlement to settlement funds to allowhospitals to get paid.

The district court concluded that the hospitals' interpretation wascorrect, as it was the only reasonable interpretation that madesense given the context of the statute read as a whole.

STANDARD OF REVIEW

The Court affirms a grant of summary judgment when the record showsthere is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law.

The parties disagree about the effect of the Hospital Lien Statutein allocating the attorney fees and costs of the personal injurylitigation. In particular, the parties disagree about the meaningof subsections 1(a) and 1(b) of the statute. These subsectionsstate.

"(1) (a) Except as provided in Subsection (3), a hospital locatedwithin the state that furnishes emergency, medical, or otherservice to a patient injured by reason of an accident is entitledto assert a lien upon that portion of the judgment, settlement, orcompromise going or belonging to the patient, or, in the case ofdeath, to the patient's heirs or personal representatives, less theamount paid by the patient, or on behalf of the patient by heirs orpersonal representatives, for attorney fees, court costs, and othernecessary expenses incidental to obtaining the judgment,settlement, or compromise.

"(b) No reduction of the asserted lien amount is allowed other thanthe amount paid by the patient, or the patient's heirs, or personalrepresentatives for attorney fees, court costs, and other necessaryexpenses incidental to litigation, unless otherwise agreed to inwriting by the lien claimant."

The Whole-Text Canon and the Grammatical Structure of Subsection(1)

The whole-text canon calls on the judicial interpreter to considerthe entire text, in view of its structure and of the physical andlogical relation of its many parts.

Read as a whole, Utah Code section 38-7-1(1) creates a priority forthe distribution of the judgment, settlement, or compromise goingor belonging to the patient. The judgment is first used to payattorney fees, court costs, and other necessary expenses accrued inobtaining the judgment. Subsection 1(a) allows a hospital to asserta lien on the remaining amount of the judgment to obtain paymentfor medical expenses incurred in treating the patient as a resultof the action being litigated provided that the amount is greaterthan $100.

Subsection 1(b) establishes that the hospital has priority over anyother creditor or the patient to the entirety of the net judgment(total judgment less attorney fees) up to its asserted lien unlessexpressly agreed to by the hospital.

In other words, the total amount of the judgment going or belongingto the patient is first used to pay or reimburse attorney fees,with the net judgment becoming available to cover the entirety ofthe hospital lien. Any remaining funds go to other lien holders, ifthey exist, and then the patient receives the final amount.

The Substantive Terms Canon

Nothing in the language of the Hospital Lien Statute allows forassessing the hospitals with a proportional share of the attorneyfees. The patients' reading of the statute to incorporateproportional sharing does not comport with the language in thestatute; in fact, substantive terms must be added to read it asassessing hospitals for a portion of the attorney fees. This goesfour square against our case law. The Court will not infersubstantive terms into the text that are not already there.

Rather the interpretation must be based on the language used, andthe Court have no power to rewrite the statute to conform to anintention not expressed. In short, where the legislature has notindicated an intention to enact an unprecedented legal requirement,we will not alter the statutory terms to surmise one.

The Court rejects the patients' notion of proportional feesharing.

Common Fund Doctrine

The patients' argument that the doctrine would avoid unjustenrichment because the hospitals otherwise would bear none of thelitigation costs is inapposite. The relationship between a hospitaland a patient is generally a contractual oneeither expressedthrough signing the forms upon admission and consenting totreatment or implied through receiving emergency treatment evenwithout signing the forms.

The existence of a claim, or right to payment, is at the heart ofthe debtor-creditor relationship. When hospitals have providedmedical services to patients in accordance with the law, they areentitled to payment from the patients. This establishes adebtor-creditor relationship between the patients and thehospitals. The Hospital Lien Statute is just one mechanism thathospitals may use to recover the debt owed for treatment-an amountthat would be owed regardless of whether a lawsuit against atortfeasor ensued. To expect a creditor to help pay attorney feesfor a lawsuit when they are entitled to collect on the debt owedthem-regardless of whether a suit is filed or the outcome-isunrealistic and illogical.

The Court affirms the district court in its grant of summaryjudgment to the hospitals.

A full-text copy of the state Supreme Court's September 24, 2018Opinion is available at https://tinyurl.com/y9ysaos7 fromLeagle.com.

1. denying as moot Plaintiff's first motion for classcertification, to stay, and for relief from briefing requirement;

2. denying as moot Plaintiff's second motion for classcertification;

3. granting Plaintiff’s third motion for class certification;

4. certifying a class of:

"(a) all natural persons in the State of Wisconsin (b) who weresent a collection letter in the form represented by Exhibit A tothe complaint in this action, (c) seeking to collect a debtallegedly owed for personal, family or household purposes, (d)between December 13, 2016 and December 13, 2017, (e) that was notreturned by the postal service";

VANGUARD GROUP: Partial Denial of Taksir Dismissal Bid Affirmed---------------------------------------------------------------In the case, ALEX TAKSIR; ORIT TAKSIR, on behalf of all otherssimilarly situated, v. THE VANGUARD GROUP, Appellant, Case No.17-3585 (3d Cir.), Judge Michael Chagares of the U.S. Court ofAppeals for the Third Circuit affirmed the District Court's partialdenial of Vanguard's motion to dismiss the claims against it andthe denial of its motion for reconsideration.

Vanguard is an investment services company that offers retailsecurities brokerage accounts to consumers. At all relevant times,its website stated that Vanguard offered a price of $2 commissionsfor stock trades for customers who maintained a balance in Vanguardaccounts between $500,000 and $1 million.

In May 2016, the Taksirs, whose holdings met the required balancethreshold, availed themselves of Vanguard's services to make twopurchases of Nokia Corp. stock. Vanguard charged the Taksirs a $7commission for each of their respective purchases. Alex Taksirthen contacted Vanguard in order to receive an explanation andrefund. Vanguard responded by email, noting in relevant part thatthe Taksirs' accounts are not eligible for discounts for tradingstocks and other brokerage securities because of IRSnondiscrimination rules and that unfortunately, the information isnot listed on the Vanguard Brokerage Commission and Fee Schedule.

Following additional correspondence from Alex Taksir, Vanguardreiterated its position that the accounts were not eligible for the$2 per-trade commission. Nevertheless, six weeks later, OritTaksir acquired additional Nokia Corp. stock in the same Vanguardaccount and was charged only a $2 commission.

The Taksirs came to believe that Vanguard was overcharging salescommissions to clients meeting certain balance thresholds. Theyfiled the instant lawsuit in the U.S. District Court for theEastern District of Pennsylvania, bringing a putative class actionfor: (1) "fraud or deception" under Pennsylvania's Unfair TradePractices and Consumer Protection Law ("UTPCPL"); and (2) breach ofcontract under Pennsylvania state law.

Thereafter, Vanguard moved to dismiss the complaint pursuant toFederal Rule of Civil Procedure 12(b)(6) on two grounds: (1) thatthe SLUSA bars both claims; and (2) that the UTPCPL claim fails foran additional reason, which is not relevant to the appeal. TheDistrict Court concluded that SLUSA did not bar the claims, butdismissed the UTPCPL claim on other grounds. The District Courtdenied Vanguard's motion to dismiss with respect to the breach ofcontract claim.

Vanguard moved for reconsideration and alternatively sought leaveto file an interlocutory appeal. The District Court denied themotion for reconsideration but certified its opinion and order forthe Appellate Court's immediate review. The Court granted thepetition for leave to appeal.

Vanguard argues that the District Court erred by concluding thatSLUSA does not bar the Taksirs' claim for breach of contract.

Judge Chagares concludes that he relies on the Supreme Court'sdecisions in both Chadbourne & Parke LLP v. Troice and MerrillLynch, Pierce, Fenner & Smith Inc. v. Dabit, and he holds that thetwo overcharges of commissions do not have a connection thatmatters to the securities transactions at issue. The Judge notesthat the facts of the case are in plain contrast to: (1) the breachof duties in executing trades of covered securities that triggeredthe SLUSA bar in Goldberg v. Bank of Am., Lewis v. Scottrade, Inc.,and Fleming v. Charles Schwab Corp.; and (2) the fraudulentmanipulation of stock prices in Dabit. The overcharges aredifferent in nature from these examples of fraud, and they were notobjectively material to the decision to purchase securities fromVanguard. Because the SLUSA bar does not apply, the Taksirs'breach of contract claim may proceed.

For these reasons, Judge Chagares affirmed the Orders of theDistrict Court.

A full-text copy of the Court's Sept. 4, 2018 Opinion is availableat https://is.gd/P4g2cj from Leagle.com.

VIRGINIA: Class Action Over License Suspensions Back to Court-------------------------------------------------------------Justin Wm. Moyer, writing for The Washington Post, reports that along-simmering federal class-action lawsuit that claims Virginiaunjustly suspends the driver's licenses of those unable to payfines returned to court when advocates for the poor sought toimmediately stop the practice.

In 2016, the Legal Aid Justice Center, which represents low-incomeVirginians, filed suit in U.S. District Court in Western Virginia,saying that more than 940,000 people in the state had theirlicenses suspended for nonpayment of fees and fines. The practiceof suspending licenses for traffic debt was widely criticized afterthe Justice Department found law enforcement acting as collectionagents in Ferguson, Mo., in 2015.

After appealing the case's dismissal, the Legal Aid Justice Centerfiled an amended claim on Sept. 11 that said "the state trapsthousands of Virginians in a nightmarish spiral from which there isno apparent exit" by automatically suspending the licenses of thosewho can't pay fines. The suspensions disproportionately affectpeople of color, as the state imposes more than $500 million infines per year without considering the ability to pay, the suitalleges.

"The indefinite suspension of the driver's licenses of low-incomeVirginians erects significant barriers to their ability to pursue alivelihood and meet basic human needs," the suit said.

The lawsuit, Stinnie v. Holcomb, details the story of DamianStinnie, a 26-year-old Charlottesville man who first lost hislicense in 2012 after he did not pay fines for three trafficinfractions. He continued to drive while battling lymphoma, thesuit said, receiving additional citations for driving with asuspended license and even serving jail time.

The suit seeks an immediate halt to license suspensions for courtdebt and a declaration that the practice is a civil rightsviolation.

"Those who can immediately pay court fines or fees are able toquickly untether themselves from their infractions, while those whodo not have the resources to pay continue to be punished wellbeyond their original infraction -- they are punished for theirpoverty, and set up for even harsher consequences as their debtscompound, their jobs are lost, and their families struggle to makeends meet," the statement said.

A Washington Post analysis in May found that more than 7 millionpeople nationwide may have lost their licenses because of unpaidcourt debts. [GN]

VOLKSWAGEN GROUP: Judge Hears Investors' Emissions Class Action---------------------------------------------------------------Matt Posky, writing for the truth about cars, reports that a judgehearing a case brought by investors against Volkswagen has deemedits former corporate head, Martin Winterkorn, was too slow inaddressing the emissions test cheating that steered the automotivegiant into colossal U.S. fines. It's an early blow against theGerman company in a suit seeking $10.6 billion in damages for stocklosses suffered when the scandal finally became public.

"Anyone acting in good faith would have followed up on thisinformation," Judge Christian Jaede of the ex-CEO during the secondday of hearings held at the Braunschweig higher regional court."This appears not to have happened."

According to Reuters, Judge Jaede accused Mr. Winterkorn of"dragging his feet" after a top-level management meeting discussedhow to best deal with U.S. regulators who were threatening to banVW because of excessive pollution levels. That gathering occurredroughly two months before the U.S. Environmental Protection Agencyissued a notice of violation in September of 2015 and the scandalbecame public.

The judge continued by saying it was unclear why Volkswagenneglected to put out a statement after finding that engine softwareon numerous diesel models had been manipulated to circumventemission testing, adding that it was reasonable to assume Mr.Winterkorn knew about the emissions cheating far earlier thanclaimed.

Thomas Liebscher, a lawyer for VW, said it would be unfair toassume the chief executive knew how the company's engine managementsoftware worked. Volkswagen's official defense is that nohigh-ranking official had any knowledge of the defeat devices priorto the company's first official announcement. However, years ofinvestigative efforts have placed those claims on some rather shakyground.

Mr. Winterkorn resigned shortly after the scandal broke. Last year,he told German lawmakers he learned of VW's illegal activities atroughly the same time the organization publicly admitted to them.He currently faces conspiracy charges in the United States but isin no danger of being extradited from Germany to stand trialthere.

Meanwhile, a consumer rights group said it will file a class-actionlawsuit against Volkswagen on Sept. 12 over the manipulation ofemissions software. It's seeking compensation for up to 2 millionowners of the affected diesel models. [GN]

Vox is a media corporation that maintains and operatesapproximately 319 sports websites through its business division, SBNation. Each website is maintained by a Site Manager, who is inturn supervised by a League Manager. Vox manages its Site Managersthrough Blogger Agreements and direct supervision by LeagueManagers. Each Blogger Agreement outlines when and how often SiteManagers must create new content, specifies that Vox maintains theauthority to edit or remove such content, and includes anon-compete clause. When a position becomes available, Vox posts ashort description to its website that includes a list ofrequirements and responsibilities, as well as details on how toapply. It advertises for all its paid positions in the samemanner.

Bradley was a Site Manager for Vox's website, Mile High Hockey,from June 2013 until February 2015. Her relationship with Vox wasgoverned by a Blogger Agreement that she signed on June 1, 2013. Ms. Bradley was interviewed, and later managed, by League ManagerTravis Hughes. She was required to watch games featuring theColorado Avalanche, a professional ice hockey team, and then topublish five to six articles per week, manage other writers, editand approve articles by those writers, monitor search engineoptimization, manage Mile High Hockey's comments section and socialmedia accounts, and live-Tweet games and practices.

Ms. Bradley was paid $125 per month. She regularly worked 30 to 40hours per week, and up to 50 hours per week during peak times orwhen she was understaffed. In late 2013, Ms. Bradley complained toher League Manager that her wages were inadequate and was told thatwages were dependent on team site traffic. Even though sheincreased Mile High Hockey's site traffic, her pay never increased. Ms. Bradley was fired in February 2015.

Plaintiff John Wakefield was a Site Manager for Vox's website,Through it All Together, from December 2015 until May 2017. Mr.Wakefield applied for the position on Dec. 10, 2015 and was hiredby Soccer League Manager Jeremiah Oshan. His relationship with Voxwas governed by a Blogger Agreement that he signed on Jan. 1, 2016. He was required to watch or listen to games featuring the LeedsUnited Football Club, an English professional soccer team, andpublish one to three articles per week, manage other writers, editand approve articles, monitor search engine optimization, andmanage Through It All Together's comments section and Twitteraccount. Mr. Wakefield was initially paid $50 per month; his paywas later increased to $75 per month. He regularly worked 30 to 40hours per week, and up to 60 hours per week during peak times.

Plaintiff Maija Varda is currently the Site Manager for Vox'swebsite, Twinkie Town. She applied for the position of SiteManager in April 2016 after seeing a job posting and wasinterviewed and hired by Major League Baseball League ManagerJustin Bopp. Her relationship with Vox is governed by a Bloggeragreement that she signed on May 1, 2016. She is required to writedaily interest articles about the Minnesota Twins, a professionalbaseball team, report breaking news, recruit and manage staffwriters, and manage Twinkie Town's social media accounts. She ispaid $400 per month. She regularly works 30 to 40 hours per week,and up to 50 hours per week during peak times or when she isunderstaffed.

On Sept. 1, 2017, Ms. Bradley filed a Collective Action Complaintagainst Vox, alleging a violation of the minimum wage and overtimerequirements of the FLSA. An Amended Complaint adding Mr.Wakefield and Ms. Varda as the named Plaintiffs was filed Oct. 23,2017.

Vox moved for partial dismissal of any claims outside the standardtwo-year statute of limitations on Nov. 6, 2017 and at the sametime moved for the Court to take judicial notice of four exhibitsattached to the partial motion to dismiss.

How much employer control is required for an independent contractorto be considered an employee under the Fair Labor Standards Act of1938 ("FLSA") is the question raised by a purported class ofemployees who provide blogging and supervision services to Vox onits various sports blogs. Vox moves for partial dismissal to limitthe Plaintiffs' claims to the two-year, rather than three-year,statute of limitations provided by the FLSA. It argues that thePlaintiffs have failed to allege adequately its violation waswillful, as required to fall under the three-year statute oflimitations.

Judge Collyer finds that in considering the motion to dismiss, sheis concerned with whether these Plaintiffs have successfully stateda claim to relief that is plausible on its face. It is prematureto consider whether Plaintiffs subjectively believed they wereemployees of Vox. She also realizes that LinkedIn profilesgenerally consist of self-reported employment information. However, at this point in the litigation, she cannot find that theaccuracy of the information contained in these screen shots can beverifiable with certainty. The Judge declines to take judicialnotice of Exhibits 2-5.

The Judge also finds that the allegations of willfulness in thecase are not as concrete or specific as those in Galloway v.Chugach Gov't Servs., Inc. or Wilson v. Hunam Inn, Inc.; however,they are sufficient to raise a plausible right to relief under thethree-year statute of limitations. In evaluating a motion todismiss, the Judge must accept all well-pleaded facts in theAmended Complaint as true. After discovery, Vox may move forsummary judgment on the issue of willfulness if the record supportsit. For now, the Plaintiffs may attempt to discover evidence tosupport their allegations.

For the foregoing reasons, Judge Collyer denied Vox Media's Motionto Dismiss, and Motion to Take Judicial Notice. A memorializingOrder accompanies the Memorandum Opinion.

A full-text copy of the Court's Sept. 4, 2018 Memorandum Opinion isavailable at https://is.gd/NVqDg8 from Leagle.com.

In an August 17, 2018 decision, the District Court granted Voya'smotion to dismiss the Plaintiff's amended complaint, withprejudice.

Plaintiff sued Voya concerning retirement funds managed by Voya onher behalf. She brought three claims under the Employee RetirementIncome Security Act, on behalf of the Cedar-Sinai Medical Center403(b) Retirement Plan, in which she was a participant, as well asall other ERISA-covered employee pension benefits plans whoseassets were invested in similar funds managed by Voya.

The District Court previously dismissed Ms. Dezelan's Complaintwithout prejudice. Following the dismissal, she filed an AmendedComplaint, which Voya moved to dismiss under Rule 12(b)(6) of theFederal Rules of Civil Procedure.[BN]

According to the complaint, Walgreen Company sells bags of mixednuts that prominently state only 50 percent of the nuts includedare peanuts. However, Ms. Munton claims the bags contain far morepeanuts -- about 64 percent by her own count.

Ms. Munton bought the nuts at a Belleville store in January, thesuit claims.

Ms. Munton says peanuts are the most inexpensive nut in the bags,and had she known the bag contained more than 50 percent peanuts,she would not have purchased the mixed nuts. She claims customershave been overcharged for the $2.99 bags.

"Although not technically a nut, peanuts are far and away thecheapest nut in the Defendant's Nuts," the complaint states.

"By putting more than 50% peanuts in the Nuts, therefore, Defendantis able to save substantial amounts of money on the backs ofcustomers," she claims.

Ms. Munton seeks class action status for the lawsuit. She requestsa jury trial and damages. She is represented by David C. Nelson ofNelson & Nelson, Attorneys at Law PC in Belleville and Matthew H.Armstrong of Armstrong Law Firm LLC in St. Louis. The lawyers havefiled numerous other false advertising class actions that arepending in St. Clair County Circuit Court.

St. Clair County Circuit Court case number 18-L-570 [GN]

WESTERN DIGITAL: Consolidated Securities Action Underway in Calif.------------------------------------------------------------------Western Digital Corporation said in its Form 10-K report filed withthe U.S. Securities and Exchange Commission for the fiscal yearended June 29, 2018, that the company still faces a consolidatedclass action suit in California.

Beginning in March 2015, SanDisk and two of its officers, SanjayMehrotra and Judy Bruner, were named in three putative class actionlawsuits filed with the U.S. District Court for the NorthernDistrict of California.

Two complaints are brought on behalf of a purported class ofpurchasers of SanDisk's securities between October 2014 and March2015, and one is brought on behalf of a purported class ofpurchasers of SanDisk's securities between April 2014 and April2015.

The complaints generally allege violations of federal securitieslaws arising out of alleged misstatements or omissions by thedefendants during the alleged class periods. The complaints seek,among other things, damages and fees and costs.

In July 2015, the District Court consolidated the cases andappointed Union Asset Management Holding AG and KBC AssetManagement NV as lead plaintiffs. The lead plaintiffs filed anamended complaint in August 2015. In January 2016, the DistrictCourt granted the defendants' motion to dismiss and dismissed theamended complaint with leave to amend. In February 2016, theDistrict Court issued an order appointing as new lead plaintiffsBristol Pension Fund; City of Milford, Connecticut Pension &Retirement Board; Pavers and Road Builders Pension, Annuity andWelfare Funds; the Newport News Employees' Retirement Fund; andMassachusetts Laborers' Pension Fund (collectively, the"Institutional Investor Group").

In March 2016, the Institutional Investor Group filed an amendedcomplaint. In June 2016, the District Court granted the defendants'motion to dismiss and dismissed the amended complaint with leave toamend. In July 2016, the Institutional Investor Group filed afurther amended complaint. In June 2017, the District Court deniedthe defendants' motion to dismiss.

Western Digital said, "The Company intends to defend itselfvigorously in this matter."

No further updates were provided in the Company's SEC report.

Western Digital Corporation ("Western Digital") is a leadingdeveloper, manufacturer, and provider of data storage devices andsolutions that address the evolving needs of the informationtechnology ("IT") industry and the infrastructure that enables theproliferation of data in virtually every other industry. WesternDigital Corporation was founded in 1970 and is headquartered in SanJose, California.

WESTERN UNION: Court Approves Douglas TCPA Suit Settlement----------------------------------------------------------In the case, JASON DOUGLAS, individually and on behalf of allothers similarly situated, Plaintiff, v. THE WESTERN UNION COMPANY,Defendant, Case No. 14 C 1741 (N.D. Ill.), Judge Gary Feinerman ofthe U.S. District Court for the Northern District of Illinois,Eastern Division, (i) granted Douglas' motion to approve the classsettlement and certify the settlement class; and (ii) granted inpart and denied in part his motion for attorney fees, costs, and anincentive award.

Douglas filed the suit as a putative class action against WesternUnion for alleged violations of the Telephone Consumer ProtectionAct ("TCPA") by sending unsolicited text messages to him and theputative class. Western Union answered two months later. Onemonth after that, and before litigation efforts commenced inearnest, the parties reported that they would engage in a privatemediation; a year later, they reported that they had reached aclasswide settlement in principle. Confirmatory discoveryfollowed, as did hearings at which the parties reported that theywould soon file a preliminary approval motion. Douglas moved forpreliminary approval of the class settlement and conditionalcertification of the settlement class, which the Court granted.

The proposed class is defined as all Persons in the United Stateswho received one or more unsolicited text messages sent by or onbehalf of Western Union between March 12, 2010 and Nov. 10, 2015.

The Settlement Agreement provides for a non-reversionary payment byWestern Union of $8.5 million, to be distributed as follows: (1)$5,209,007.64 to the settlement class; (2) $5,000 to Douglas as anincentive award; (3) $2,804,850.27 in attorney fees; and (4)$481,142.09 in notice and administration costs (with a cap of$553,197, with the difference coming from the amount devoted to thesettlement class). Because 54,315 individuals (approximately 7.3%of the class) submitted timely claims; each would receive $95.90 ifthe referenced figures held.

Now before the Court are Douglas' (i) motion to certify thesettlement class and for approval of the class settlement, and (ii)motion for attorney fees, costs, and incentive award.

Judge Feinerman explains that certain matters transpired during theapproval process that gave the court great pause, not about theappropriateness of the class certification or the size of the classsettlement, but rather about the conduct and representations of thelead class counsel, Joseph Siprut of Siprut PC. Considering theimportance of these matters, the Judge wished to give the mostcareful consideration to the record and to Siprut's explanationsfor his conduct; in addition, the Judge awaited the opinion in Inre Southwest Airlines Voucher Litigation, which from the appeal'soutset conceivably could, and ultimately did, address certainquestionable conduct by Siprut as the lead class counsel in thatcase, including what the Seventh Circuit described as his rapaciousrequests for fees.

Judge Feinerman holds that given the good result Siprut obtainedfor the class and the fact that he is responsible for coveringadditional administrative expenses, he will award Siprut $425,000in attorney fees and costs, which is 5% of the settlement fund. This reduction reflects in part that Siprut failed to keepcontemporaneous time records and, compounding the problem, failedto provide any support (other than his own say-so) for hisreconstructed time calculations. The difference between Siprut'srequested fees and costs, and the fees and costs awarded, willrevert to the class.

Judge Feinerman granted the motions for approval of the settlement,class certification, and incentive awards, while the motion forattorney fees is granted in part and denied in part. The Judgemodified the settlement such that the distribution of the $8.5million common fund is as follows: (1) the class member claims inthe amount of $7,516,803; (2) the settlement administrationexpenses of $553,197 (the cap is likely to be reached given thesupplemental notice), with the class counsel covering any costsincurred above that amount; (3) an incentive award to Douglas of$5,000; and (4) the attorney fees and costs to the class counsel of$425,000.

The settlement administrator will re-send notice as described. After the new claims period expires, the administrator will file astatus report indicating the number of notices that bounced back,the number of additional valid claims, and the re-calculatedrecovery per claimant. Then, 90 days after the settlement checksare distributed, the parties will file a status report indicatingthe amount of unredeemed funds and proposing whether those fundsshould be distributed through a second pro rata distribution or acy pres award. In deciding whether to seek fees or take otheraction, the counsel for the objector who is not a class membershould seriously consider whether it is proper for a non-classmember's attorney to further burden the parties and the judiciarywith additional filings.

A full-text copy of the Court's Aug. 31, 2018 Memorandum Opinionand Order is available at https://is.gd/QOJjte from Leagle.com.

WESTPAC: May Face Class Action Over Irresponsible Home Loans------------------------------------------------------------Stephen Long, writing for ABC News, reports that Westpac could besued by its customers, funders and investors after admitting itbreached responsible lending laws and a separate finding that itlacked appropriate lending controls.

The bank recently reached a $35 million settlement with thecorporate watchdog ASIC after admitting an "automateddecision-making system" for home loans breached responsible lendinglaws, issuing more than 10,000 mortgages that should not have beenapproved.

"These admissions expose Westpac to civil action by individuals whowere provided with too much credit -- and inappropriately so --during their application for a loan," Josh Mennen, a principal atthe plaintiff law firm Maurice Blackburn, told the ABC.

"In circumstances where people find themselves in default on theirmortgages they will be able to bring an action against Westpac,potentially, for breaches of responsible lending laws.

"It is early days in relation to any class action, but I don'tthink anyone who has been following this could seriously rule outthe possibility of a class action being brought."

International investors in the wholesale money markets who fundedWestpac mortgages or invested in residential mortgage-backedsecurities underpinned by its loans could also have a case to suein the future if default rates rise.

"There is an argument that the international wholesale lendingcommunity who gave these banks a lot more money than they probablywould have had they known that the banks did not have thesecontrols in place would have grounds for legal action," LindsayDavid of LF Economics said.

Last year, in response to allegations of mortgage fraud andmanipulation by major Australian banks, the Australian PrudentialRegulation Authority (APRA) commissioned a series of confidential"targeted reviews" of major banks.

The reviews probed the data and systems Westpac uses to assessapplicants' ability to service housing loans.

The findings on Westpac were damning.

Eight out of 10 of its core lending controls were found to be"ineffective in their operation". Most were also poorly designed.

The consequence was Westpac lacked effective measures to accuratelyassess the existing debts and expenses of home loan customers orproperly assess their ability to service loans.

"There were limited controls in place to ensure that borrowerdeclared living expenses were complete and accurate," audit firmPWC, which conducted the review for APRA, concluded.

With interest rates at historic lows, arrears and default rates onWestpac's mortgage book are low despite the adverse findings;Westpac maintains the loans which were the subject of its $35million settlement with ASIC are performing well.

The question is whether this will continue when interest ratesrise, and borrowers face the potential "double whammy" of risingrates and falling property values.

APRA findings 'never meant to see the light of day'The findings of the targeted review and the admissions ofirresponsible lending expose Westpac to "very large litigationactions against them down the line should investors find themselvesrunning at a loss or running at some sort of deficit due the factthat they invested into some sort of financial product that --let's call it what it is -- [involved] fraud," Mr David said.

APRA kept the targeted reviews secret -- the findings only becamepublic when the documents surfaced earlier this year at the bankingroyal commission.

"These findings were never meant to see the light of day," Mr David said.

The banking regulator did not provide the results of the targetedreviews to the Treasurer, the Minister for Financial Services orthe Finance Minister, the prudential regulator told Mr David inresponse to a request for documents under Freedom of Informationlaws.

The ABC contacted APRA and asked why it had not formallycommunicated the results of the targeted reviews to relevantministers, and why it had allegedly failed to inform the bankingroyal commission of the existence of the targeted reviews untilafter the commission was "tipped off" to their existence.

APRA, in response, did not answer the questions, but it told theABC:

"APRA can and does instigate targeted reviews across all industriesit regulates as part of the normal supervision process.

"APRA does not comment on its supervision of specific entities.However, as has been noted in public statements regarding theoutcomes of the program of targeted reviews on mortgage lending, arange of issues was identified across all institutions reviewed.Institutions were required to provide APRA with rectification plansto deal with the issues identified."

Westpac declined a request for an interview.

A spokesman said it was not able to comment because its settlementwith ASIC was yet to be ratified by the Federal Court. [GN]

Tennessee Tractor is a west Tennessee-based John Deere dealerengaged in the sale and service of John Deere tractors, mowers, andtheir respective parts. It also established the Tennessee TractorLLC Health and Welfare Benefit Plan for the benefit of itsemployees and their eligible dependents.

Young is and, at all times relevant to the lawsuit, was a full-timeemployee of Tennessee Tractor. The Defendant is and, at all timesrelevant to the lawsuit, was a third-party provider of ERISA planadministration and claims services.

In February 2016, the Defendant, through its own actions inTennessee and those of its agent and broker, marketed a self-fundedgroup health plan in Tennessee to Tennessee Tractor for the benefitof its employees. This health plan would be and indeed was anemployee welfare benefit plan as defined under ERISA.

On April 18, 2016, Tennessee Tractor entered into a PatientProtection and Affordable Care Act Compliance Service Agreementwith Defendant WH Administrators to administer the Plan. Under theAgreement, the Defendant was to, among other things, ensureTennessee Tractor's compliance with the Patient Protection andAffordable Care Act and administer the Plan. The Plan was tocommence on June 1, 2016. Tennessee Tractor was named as PlanSponsor. The Defendant was the duly appointed Plan Administratorand named fiduciary. Tennessee Tractor's employees, including Young, were participantsin the Plan and therefore eligible to receive benefits under it. Over the course of the parties' contractual relationship, TennesseeTractor performed all of its duties and obligations under theAgreement. But in December 2016, the Defendant abruptly, andwithout explanation, ceased processing or paying the claims ofTennessee Tractor's employees, including those of Young.

On Nov. 10, 2017, Plaintiffs Tennessee Tractor and Young, on behalfof himself and all similarly situated persons, filed a class-actionComplaint under ERISA against Defendant WH Administrators. On Nov.27, 2017, they filed a still-pending Motion for PreliminaryInjunction. On Dec. 4, 2017, the Defendant filed a Motion toCompel Arbitration. Then on Dec. 11, 2017, the Plaintiffs filed anAmended Complaint, resulting in the Defendants' re-filed Motion toCompel Arbitration. After the parties filed a Response, a Reply,and a Sur-Reply, the Court granted the Defendant's Motion to CompelArbitration in Part and compelled Tennessee Tractor to take itsclaims against Defendant to arbitration. The Defendant soughtreconsideration of its Motion as to Young and the other classPlaintiffs, which the Court denied in its April 13, 2018 Order.

Since that time, the Court has rejected the Defendant's efforts toquash various subpoenas because the Defendant lacked standing tomove the Court to do so, and the parties agreed to a Consent Orderthat resolved the Motion for Preliminary Injunction.

Before the Court is the Defendant's Motion to Dismiss for Failureto Join a Necessary and Indispensable Party. It seeks thedismissal of the class action under Federal Rule of Civil Procedure12(b)(7) because Young failed to join his co-plaintiff and employerTennessee Tractor and insurance broker Jas. D. Collier & Co. ThePlaintiff filed a Response in Opposition to the Defendant's Motion,asserting that neither Tennessee Tractor nor Collier is necessaryand indispensable to the case.

Judge Anderson finds that the Defendant has failed to meet itsburden of showing that an absent party is necessary andindispensable to the litigation. Accordingly, dismissal is notwarranted under Rule 12(b)(7).

He explains that the Defendant asserts that Tennessee Tractor isthe Plan Administrator and, therefore, Tennessee Tractor's presenceis required because it is the entity in control of the funds and inthe best position to provide the Plaintiff with relief. But, asthe Plaintiff noted in his Response and as the Court noted in itsOrder on the Motion to Compel, there are, at the very least,reasons to doubt the Defendant's assertion here. Ultimately,however, the Judge needs only, and indeed must, accept thePlaintiff's allegations as true for the purposes of the Motion. And the Plaintiff alleges that the Defendant is the PlanAdministrator. Therefore, the Judge lacks a basis to conclude thatTennessee Tractor is a necessary party.

The Defendant's additional argument that Collier is a necessaryparty because the Plaintiff relies on representations made byCollier in setting forth his claims must also fail. He finds thatthe Amended Complaint only mentions Collier to the effect thatCollier assisted the Defendant in marketing its health plans inTennessee to Tennessee Tractor. But the Plaintiff's claims againstthe Defendant involve the Defendant's statutory duties under ERISAand are not based in Collier's representations. Thus, completerelief can be sought from Defendant as Plan Administrator. Onceagain, he lacks a basis to conclude that Collier is a necessaryparty because the nature of the Plaintiff's allegations suggeststhat relief, if he is entitled to it, should come completely fromthe Defendant.

As the Defendant does not assert that either Tennessee Tractor orCollier claims an interest relating to the subject of the action,the Judge further concludes that there is no basis to find thateither party is necessary under the second prong of Rule 19(a). Thus, there is no need to proceed to Rule 19(b). The Court holdsthat Rule 12(b)(7) and Rule 19 do not require dismissal of theAmended Complaint. He denied the instant Motion.

A full-text copy of the Court's April 22, 2018 Order is availableat https://is.gd/FA2TXq from Leagle.com.

Any suggestion that he had deliberately set out to derail the classaction was ridiculous, he said.

Brownlee was responding to accusations that followed a phone callhe made to Adina Thorn Lawyers after he received a letter from thelaw firm, sent to his Ilam address in Christchurch as a propertyowner, asking him to support the class action.

The proposed lawsuit is a result of manufacturers of the mesh, usedmainly under concrete floors and driveways between 2012 and 2016,being fined after pleading guilty to misrepresenting theirproduct.

Those guilty pleas were a good result for the Commerce Commission,the letter said, but did not provide any compensation for affectedproperty owners, which was the purpose of the class action.

The firm's principal, Adina Thorn, said she was disappointed thatBrownlee had targeted one of her staff and appalled that a seniormember of Parliament would attempt to intimidate anyone planning alegal action.

"The junior solicitor was incredibly upset after the call shereceived from Mr Brownlee. She felt intimidated and harassed."

Ms Thorn said Mr Brownlee's behaviour was unprofessional and thathe did not identify himself until the very end of the call.

"The motivation for the call seems unclear," she said. "However wedo wonder if Mr Brownlee was attempting to intimidate us in orderto try and derail a proposed class action related to thenon-compliant steel mesh. We can see no other reason for the angryand intimidating call. We should all be concerned about this kindof behaviour; it's unacceptable for an MP to interfere in thisway,"

Mr. Brownlee said it was only at the end of the call he realisedthat he was not speaking to Thorn but should have made nodifference to the person at the other end of the phone who theythought they were talking to.

"Are they saying that if I had said who I was at the start of thephone call I would have got a different answer?"

Mr. Brownlee said he rang to question what he sees as the lawsuit'slack of clarity, saying the letter seeking support from propertyowners does not clearly state whether the class action is based onproducts being wrongly labelled or whether they were deficient.

That was a big issue and it was irresponsible of the firm not tomake that clear, he said, as the two companies so far fined overtheir mesh products were charged over misleading customers aboutwhether their steel had been tested and certified as complying witha new earthquake safety standard, not because the product'sstrength had been proven to be substandard.

Mr. Brownlee said property owners considering joining the classaction needed to be aware that by adding their property's addressto a legal action they could in effect be labelling it as havingdeficiencies, which could have an adverse affect in the future.

"The potential to devalue property is quite strong. It wasincumbent as a sitting MP for me to ask the questions that I did."

Ms. Thorn said the lawsuit is based on people being sold a productthat was not what it was promoted as being.

About 75 per cent of the homes and businesses with the steel meshare in Canterbury, she said.[GN]

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